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 Facebook ad for McCain Foodservice and Five Akhi’s restaurants, seen on 30 January 2026. The caption stated “That nod moment […] Those @fiveakhis loaded fries are all we can think about. Made with McCain SureCrisp.” The ad included a video which began with an image of chips frying. It then showed them served in a box with sauces, toppings and meat, in front of a 5 Akhis-branded sign, and then a woman eating from the box.
Issue
The complainant challenged whether the ad was a paid ad for an identifiable less healthy food product placed on the internet.
Response
McCain Foods (GB) Ltd t/a McCain Foodservice Solutions (McCain) said payment for the ad to be placed was made by an agency, on McCain’s behalf. The ad was part of a collaborative business-to-business (B2B) initiative designed to demonstrate how McCains’ foodservice customers used their SureCrisp fries in their menus. It featured Five Akhi’s on that basis, and was not intended to promote a specific finished dish to consumers. Five Akhi’s did not play a role in determining the content, targeting or promotion of the ad; it was initiated, funded and managed by McCain.
McCain Foodservice Solutions operated exclusively within the foodservice sector, and their paid activity on Meta followed that principle. The ad was a B2B ad, targeted only at individuals working in foodservice roles, via sector-specific and role-specific audience criteria. They noted that ads targeted to food or drink businesses were exempt from the rule, and believed the targeting criteria they had used ensured the ad fell under that exemption. They provided details.
They noted that no specific products were identified in the ad, but confirmed that the products featured were McCain SureCrisp™ Skin On Thin Cut 3/8 Fries, and Five Akhi’s Chicken Strip Remix loaded fries menu item. The SureCrisp Fries product shown in the ad was not classified as high in fat, salt or sugar (HFSS) and therefore also was not classified as a “less healthy” food. The other 12 products in the SureCrisp Fries range also were not classified as HFSS, or “less healthy”. However, the Chicken Strip Remix item was classified as high in fat, salt or sugar (HFSS). They provided nutrient profile information for all the products.
They said the finished loaded fries dish appeared very briefly, for around one second, and was not named. Identifying the precise variant would require viewers to visit Five Akhi’s website and navigate several menu options. In that context, they did not think viewers could reasonably be expected to identify the ad as being for that product.
While they believed the ad complied with the Code, they had removed the ad as soon as the ASA contacted them, as a precautionary measure.
Assessment
Upheld
CAP Code rule 15.19 required that persons must not pay for ads for an identifiable less healthy food or drink product to be placed on the internet. The tests determining whether an ad was covered by the restrictions were set out in law, as reflected in the Code.
Advertisements directed solely at persons who were engaged in, or employed by, a business which involved or was associated with the manufacture or sale of food or drink, were exempt from the rule. The ASA first assessed whether the ad fell under that exemption.
We noted McCain had paid to place the ad on Facebook, which as a generalised social network had a very broad demographic of users. In that context, we considered McCain must demonstrate that they had used very carefully selected and specific targeting criteria which ensured the ad was directed solely to Facebook users who met the criteria set out in the exemption.
We noted that a broad range of businesses could fall under the exemption. We considered a “business which involved or was associated with the manufacture or sale of food or drink” could, for example, include businesses that were not only or mainly focused on the manufacture or sale of food or drink products, and businesses that may not be interested in purchasing the advertised food or drink products. Additionally, the exemption did not require that the person to whom the ad was directed must be involved in or responsible for a business’ purchasing decisions.
We reviewed the details of the criteria used to target the ad. It was targeted only to people who were registered with Meta as over 25 years old, whose profile also met at least one of a range of ‘interests’, and at least one of a range of ‘behaviours’ and job titles. The interests included: several named restaurants, sandwich shops and fast food outlets; types of venue where food was sold, such as bars, pubs, fast food, “Bowling” and “Cinema (films)”; types of industry relating to food, such as hospitality and “Food and restaurants”; and types of food dishes such as French fries, hamburgers, and fried chicken. The behaviours were “Food and restaurant Page admins” and “Employers: Restaurant management, Hospitality industry or restaurants”, and the job titles included: various types of chef or cook; manager roles in restaurants, catering, and hotels; and “Food and Beverage” managers and directors.
We acknowledged the ad would therefore have been targeted to Facebook users whose profiles were categorised by Meta as having both an ‘interest’, and a ‘behaviour’ and job title associated with the food and drink or hospitality industries. However, it was not clear that those categorisations solely included people who were, at the time the ad was targeted to them, actually engaged in, or employed by, a business which fell under the exemption. We therefore considered we had not seen sufficient evidence to demonstrate that the ad was exempt from the requirements of Code rule 15.19.
We therefore next assessed whether consumers who viewed the ad could reasonably be expected to identify that the ad was for a less healthy food or drink product. 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 shots of fries being cooked, being dished into a box with the “5AHKIS” logo, a sauce being added, a shot of the final loaded fries item, and someone eating them. The caption referenced both the McCain and Five Akhi’s brand names, as well as referencing “loaded fries” and “Made with McCain SureCrisp”. We considered consumers could reasonably be expected to identify that the ad was for both the McCain’s “SureCrisp” fries and Five Akhi’s “loaded fries” ranges, including the fries and loaded fries shown in the visuals, and foods in those ranges that were “less healthy”.
We noted that brand advertisements (those that promoted a brand, including the brand of a range of products), were exempt from the restrictions in rule 15.19, subject to certain provisions. 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. An ad that included a realistic image of a food or drink itself, out of packaging, where that food or drink was visually indistinguishable from a specific less healthy food or drink product, was also not a brand advertisement.
The ASA must therefore consider which of the following scenarios applied to the ad:
1. An ad which depicted a specific “less healthy” food sold by McCain or Five Akhi’s would be in breach of the “less healthy” food rule.
2. An ad which depicted a specific non “less healthy” food sold by McCain or Five Akhi’s, by clearly identifying it as that specific non “less healthy” food (for example, by stating its name), would not be in breach of the “less healthy” food rule.
3. If an ad featured a realistic image of a food sold by McCain or Five Akhi’s but did not identify which specific food it was, we must assess whether the food shown in the ad was visually indistinguishable from any specific “less healthy” food sold by McCain or Five Akhi’s. That was the case whether the realistic image in the ad was of a “less healthy” food, or a non “less healthy” food. If it was visually indistinguishable from a “less healthy” food, the ad would be in breach of the “less healthy” food rule.
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.
Chips and fries fell within the “less healthy” food Category 12 which related to potato products. We understood that none of McCain’s SureCrisp range of fries were classified as HFSS. We considered Five Akhi’s “loaded fries” products fell within Category 13, which was described in law as including “products ordered from a menu, which by themselves, or together with other products ordered from the same menu, are intended to be consumed as a complete meal”. We understood that at the time the ad was placed, Five Akhi’s offered two “loaded fries” menu items: Chicken Strip Remix which McCain said was shown in the ad; and Mega Loaded Fries. Both those items were classified as HFSS.
The ad did not identify the specific SureCrisp and loaded fries products shown, for example by referencing the full product names. However, McCain had acknowledged that the loaded fries shown in the ad were Five Akhi’s Chicken Strip Remix, which were an HFSS product. As such, the ad depicted a specific “less healthy” loaded fries product and scenario 1, as referenced above, therefore applied to the ad. We therefore did not go on to assess, under scenario 3, whether the realistic imagery of the loaded fries shown in the ad was visually indistinguishable from any other specific “less healthy” food sold by Five Akhi’s menu.
We understood that the specific SureCrisp fries that McCain said were depicted in the ad were not HFSS and therefore scenarios 1 and 2 did not apply to the depiction of that product. However, we did not further assess whether scenario 3 applied to the depiction of that product, because we had already determined that the ad depicted the specific “less healthy” Five Akhi’s Chicken Strip Remix loaded fries product.
We concluded that because the ad was a paid-for ad for identifiable “less healthy” foods, which depicted a specific “less healthy” food, it 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 in the form complained of. We told McCain Foods (GB) Ltd t/a McCain Foodservice Solutions to ensure their paid-for ads on the internet were not for an identifiable “less healthy” food.
