Background
On 5 January 2026, new rules in the CAP and BCAP Codes on the advertising of “less healthy” food and drink products came into force.
The rules were supported by additional guidance, “Advertising of less healthy food and drink products”, which set out various tests and exemptions relevant to the ASA’s approach to assessing individual ads under the relevant Code rules.
The rules and guidance reflected the requirements of the Communications Act 2003, The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024, and The Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025.
Ad description
A paid-for ad on Instagram for M&M’s, seen on 9 January 2026, featured the text “For a truly unique event” and “Visit mms.com”. An image included two cartoon-style M&M’s with faces, arms and legs, and an “m” on their bodies; one was round and green and the other was oval and yellow. The “m” on their bodies was positioned either side of a large “&” to read “m&m”.
Issue
Bite Back, a food campaigning group, challenged whether the ad was a paid-for ad for an identifiable “less healthy” food product placed on the internet.
Response
Mars Wrigley Confectionery UK Ltd t/a Mars said the ad did not depict or promote a specific, identifiable “less healthy” food or drink product. It did not feature any product packaging, images of confectionary, references to flavour, ingredients or nutritional characteristics, or calls to consume or purchase a specific product. There were no visual or text elements in the ad that would enable a reasonable consumer to identify the ad as being for a particular “less healthy” food or drink product.
Mars believed the ad instead constituted brand advertising for the M&M’s brand. Ads that promoted a brand or range of products were exempt from CAP Code rule 15.19, provided no specific “less healthy” product was depicted. They noted that depictions of specific less healthy products by way of representations of brand characters did not fall under the brand advertising exemption. However, the M&M’s brand characters depicted and represented the M&M’s brand rather than a specific “less healthy” product.
They said the M&M’s characters were long-established, anthropomorphised brand mascots which functioned as a storytelling device for the brand. The yellow and red characters had been used in the UK since the 1988 UK launch of M&Ms, with additional characters introduced over time, including brown in 2012 and purple in 2022. The characters were not depictions of food products. They were, intentionally, highly stylised, animated characters with human traits including arms, legs, facial expressions and distinct personalities. They were not realistic representations of any specific, identifiable “less healthy” food product.
The characters were used widely in brand communications that did not promote individual products or variants in the UK, but instead focused on more specific characteristics or behaviours. The characters also appeared as brand mascots on non-food merchandise such as clothing, souvenirs, gifts and home furnishings, and featured in partnerships and collaborations that were not focused on “less healthy” food or drink products.
Mars said neither the shape nor colour of the characters would enable a reasonable consumer to identify a specific product that was high in fat, salt or sugar (HFSS product). Both the round green and oval yellow characters appeared independently in the ad, without packaging, product name or descriptive cues. The character colours were being used exclusively to identify the known green and yellow characters and their associated personalities and behaviours, rather than to identify a specific product variety. They were not shown being eaten or engaging in behaviour that depicted or promoted consumption of M&M’s products.
Mars said the packaging of each UK M&M’s variant had a distinct colour, and acknowledged that Peanut M&M’s were normally sold in yellow packaging. However, the colour association did not extend to particular brand characters; neither the yellow nor green character was used exclusively for a single product variant. They provided images of the packaging for various products, including Easter and Christmas themed products and flavour variants of the small coloured coated sweets (or ‘lentils’). In the examples, the oval yellow character was featured on a Peanut M&M’s pack, a Chocolate M&M’s pack, a Crispy M&M’s pack, Crispy M&M’s Bunny bars, a Crispy M&M’s Mini Santas pack and a Crispy M&M’s Bunny Easter egg. The round green character was featured on a Crispy M&M’s Easter egg.
They said multiple M&M’s product variants had a round shape, so the round green character was not linked to a specific product based on its shape. The ad did not associate the oval character with the Peanut M&M’s variant since it did not include visual or textual references to peanuts, nuts or product cross-sections. They reasserted that the oval M&M’s character was stylised and anthropomorphised rather than being a realistic depiction of confectionary.
Mars said the presence of brand characters alone did not equate to the promotion of a specific “less healthy” product. The ad promoted the M&M’s brand, only used the M&M’s name as part of the brand logo, and did not depict or name a specific “less healthy” food or drink product.
Assessment
Upheld
The CAP Code required that persons must not pay for ads for an identifiable “less healthy” food or drink product to be placed on the internet.
A food or drink was “less healthy” if it met two tests, set out in the rule. Firstly, it must be classified as HFSS according to the Department of Health and Social Care’s Nutrient Profiling Technical Guidance. Secondly, it must also fall within a food or drink category set out in law. The ASA understood that all M&M’s product variants were classified as HFSS foods and fell within the “less healthy” food Category 4, which was described in law as “Confectionary including chocolates and sweets”.
The test determining whether an ad was covered by the restrictions was set out in the Communications Act 2003 section 368Z14, as reflected in Code rule 15.19. A “less healthy” product was “identifiable”, in relation to ads, if persons in the UK could reasonably be expected to be able to identify the ad as being for that product.
The ad featured the round green and oval yellow M&M’s characters, and the text “For a truly unique event” and a link to “Visit mms.com” and “Shop Now”. As with all paid-for ads on Instagram, the handle and profile picture of the account that posted the ad was included in the top left-hand corner; the name was “mmsuk” and the profile picture showed the M&M’s logo against a circular yellow background. We considered that consumers could reasonably be expected to identify the ad as being for M&M’s.
However, brand advertisements (those that promoted a brand, including the brand of a range of products), were exempt from the restrictions, by virtue of The Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025, which also set out certain provisos, as also reflected in the Code. For example, an ad that depicted a specific “less healthy” product was not a brand advertisement. A “specific” product was a product that was differentiated from other products, unless it was only differentiated by pack size or packaging format. We therefore assessed whether the ad was a brand advertisement.
CAP Advertising Guidance on “Advertising of less healthy food and drink products” noted that an ad could depict a specific “less healthy” product through the use of branding techniques, including the use of names, logos, and brand characters. Names or logos that related to a specific “less healthy” product, or brand characters that were personifications of a specific “less healthy” product, would not fall under the brand advertising exemption. Combinations of brand techniques might when taken together result in an ad depicting a specific “less healthy” food, rather than the brand of a range of products.
The M&M’s logo was used for a range of products which were differentiated by flavour, shape and product type, for example, lentils (the small coloured coated sweets), Easter eggs and chocolate bars. Similarly, the M&M’s brand name was a common part of the name of all those product variants but was not the full name of a specific “less healthy” product. We therefore considered the M&M’s name and logo, depicted in the Instagram handle and in the ad’s text and imagery, did not of itself depict a specific “less healthy” product.
We understood that the M&M’s characters included round characters that were brown, orange, red and green, and oval characters that were yellow, purple and blue. The ad featured the round green and oval yellow characters. We considered the shapes of those characters – both round and oval – explicitly referenced the shapes of M&M’s lentil product variants. While the characters were stylised animations, we considered they were personifications of the M&M’s lentil product variants.
We acknowledged that the M&M’s characters which featured prominently on a pack did not always correlate with the shape of the product variant within the pack. For example, while the oval yellow character appeared prominently on some sizes of Peanut M&M’s packs, other characters also appeared prominently on other Peanut M&M’s packs: a ‘Sharing’ bag of Peanut M&M’s featured the round red character, and the ‘Party’ bag featured the round red character and the oval blue character. Similarly, the oval yellow character appeared on packaging for non-Peanut product variants.
A number of M&M’s product variants were round: Chocolate, Crispy, Salted Caramel, Cookie Dough and Chocolate Minis. All those product variants included different-coloured lentils, including green. We therefore considered that the round green character shown in the ad was not representative of a specific less healthy product, instead representing a range of flavour variants. It therefore did not depict a specific “less healthy” product.
On the other hand, all the Peanut M&M’s packs were coloured yellow, in the same shade as the character in the ad, and as the M&M’s logo in the ad. The only M&M’s product variant which had lentils that were oval in shape was Peanut M&M’s. As with round product variants, Peanut M&M’s packs included different-coloured lentils. However, we considered that, because of their distinct shape, the oval M&M’s characters, including the yellow one featured in the ad, depicted Peanut M&M’s. Therefore, while that (and the other oval characters) were featured on packaging for non-Peanut product variants, we considered the oval yellow character featured in the ad specifically depicted Peanut M&M’s, which were a specific “less healthy” food product.
While the ad did promote the brand of a range of products, it also depicted (by way of a combination of imagery, colour and brand character) a specific “less healthy” food product – Peanut M&M’s. The exemption from the rules for brand advertising therefore did not apply. We concluded that the ad was a paid-for ad for an identifiable less healthy food product and therefore breached the Code.
The ad breached CAP Code (Edition 12) rule 15.19 (Placement of less healthy food and drink product advertisements online).
Action
The ad must not appear again the form complained of. We told Mars Wrigley Confectionery UK Ltd t/a Mars to ensure their paid-for ads on the internet were not for identifiable “less healthy” foods, such as through the inclusion of a character that depicted a specific “less healthy” food product.
