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 TV ad for McDonald’s McDelivery, seen between 8.15 pm and 9 pm on 11–13 January 2026.
The ad featured a woman sitting in a living room, looking at her phone, and turning to a man and saying, “McDelivery? You in?” On-screen text then stated “Delivery fee from 99p. Only on the McDonald’s app” as the man replied, “I’m in.” The ad then showed another adult at the top of some stairs who shoutedl “I’m in. McNuggets for me, medium meal.” A man was seen looking in a fridge as he said “Yeah, I’m in,” before a woman walked through the door and said “I’m in. McCrispy”. The ad then showed a crane on the top of a block of flats with workers shouting “We’re in” and “McDelivery, McChicken sandwich I’m in.” On screen text stated “18+. Service fee & small order fee (each set by chosen restaurant) may apply. Participating restaurants. Serving Times and T&Cs apply.” The voice-over then stated, “There’s nothing quite like a McDelivery. You in? Oh I’m in” as the on-screen text showed the McDonald’s logo, the “Delivery fee from 99p. Only on the McDonald’s app. Order Now”.
The ad was given restrictions by Clearcast indicating that it did not include a product high in fat, salt or sugar (HFSS), and did not fall under the restrictions for ‘less healthy’ foods.
Issue
Two complainants challenged whether the ad was for an identifiable less healthy food product and was included in television programme services between 5.30 am and 9.00 pm.
Response
McDonald’s Restaurants Ltd, t/a McDonald’s said the ad did not feature any images of food or drink products but that some McDonald’s products were expressly named by the characters in the ad. They confirmed those products were Chicken McNuggets, a McCrispy, and the McChicken Sandwich. The character who asked for McNuggets asked for a McNuggets Medium Meal.
McDonald’s said that McNuggets, McCrispy and McChicken Sandwich were not products high in fat salt or sugar (HFSS) and therefore not “less healthy” foods. They provided nutrient profile calculations for those products. They said those three products were readily distinguishable from other menu items sold by McDonald’s.
They said the McNuggets Medium Meal could include either six or nine McNuggets, which were the only fixed item in the meal. They explained that a McNuggets Medium meal consisted of the McNuggets, and a choice of sides, dips, and a drink. As part of the meal, a customer could choose to have any side from a selection of fries, salad, sliced fruit or vegetable sticks, a drink from a selection of 30 available options, and a dip could also be added.
McDonald’s said that none of the sides options in the meal were HFSS and therefore were not less healthy foods. Of the 30 drink options which could be chosen, 20 were not HFSS. Dips, if chosen, did not fall within any of the categories of “less healthy” food or drink set out in law. They also said that because only the McNuggets were a fixed part of the meal, the other items were not individually identifiable based on the ad’s generalised reference to a McNuggets “medium meal”.
McDonald’s believed that because the ad explicitly named only three specific menu items which were not HFSS products, the ad was not in breach of the rule. They considered the ad focused on those three menu items and that viewers were likely to identify that the ad was only for those items.
Clearcast said the main focus of the ad was to promote McDonald’s delivery service, rather than to showcase any particular food or drink product. It did so by focusing on the social and collective nature of ordering through the McDelivery service, with individuals across different locations confirming they would join the order. They noted that no food or drink was shown visually in the ad. While three menu items were called out in the voice-over, those references were fleeting, incidental, and presented as examples of individual preferences within a wider group. Furthermore, none of those products were HFSS. Clearcast said the ad was therefore approved as a non “less healthy” food ad.
Assessment
Not upheld
The BCAP Code required that ads for an identifiable “less healthy food” or drink product must not be included in television programme services between 5.30 am and 9 pm.
The ad was seen by the complainants in TV programme services during the day, before 9 pm.
The test determining whether an ad was covered by the restrictions was set out in law, 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 ASA understood that McDelivery was a food delivery service for menu items from the McDonald’s menu, provided through the McDonald’s app. The ad featured people joining together to order a delivery of McDonald’s menu items using the McDelivery service. Three people asked for specific items from the McDonald’s menu: the McNuggets medium meal, the McCrispy and McChicken Sandwich. No other food or drink item was shown or named in the ad. While the references to the specific items were brief, we considered they were sufficiently prominent that viewers would note them. We therefore considered that consumers could reasonably be expected to identify that the ad was for the McDelivery service and therefore the range of McDonald’s menu items which could be delivered to their home, including “less healthy” products, and for the three specific menu items named.
Brand advertisements, which were ads that promoted a brand, including the brand of a range of products, were exempt from the rule. However, ads which depicted a specific “less healthy” product were not brand advertisements and therefore were subject to the rule.
We considered the references to the McDelivery service, and by extension the full range of McDonald’s products, related to the overall McDonald’s brand and therefore depicted the brand of a range of products rather than any specific “less healthy” product. However, because the ad also named three specific menu items, it depicted specific food products. We therefore assessed whether those items were “less healthy” foods.
A food or drink was “less healthy” if it met two tests, set out in the rules. 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.
We understood that the McChicken Sandwich and the McCrispy were not HFSS foods. Ads for those two menu items were therefore not restricted by the “less healthy” food rule.
We then considered the ad’s reference to “McNuggets for me, medium meal”. We noted it did not specifically name “Chicken McNuggets”. However, at the time the ad was broadcast, the only “McNuggets” item available was Chicken McNuggets. We therefore considered it could only be a reference to Chicken McNuggets, which we understood were not an HFSS food. We understood the meal always included the fixed main element of six or nine Chicken McNuggets. A consumer could then choose one side dish selected from four options, a drink from a range of 30 drinks, and a dip from several options. We considered that because the “medium meal” encompassed a range of food and drink items, the reference to a “McNuggets medium meal” depicted only one specific product by name – Chicken McNuggets. Chicken McNuggets were not a “less healthy” product, and as such ads for that product were not restricted by the “less healthy” food rule.
Because the three specific menu items named in the ad were not “less healthy” foods, we concluded the ad was not for identifiable “less healthy” food or drink products. It therefore fell outside of the scope of BCAP Code rule 32.21 and did not breach the Code.
We investigated the ad under BCAP Code rule 32.21 (Scheduling of less healthy product advertisements), but did not find it in breach.
Action
No further action necessary.
