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
An Instagram post by Ellie Scotney (elliescotney_) for Morley’s UK, posted on 25 March 2026, included an image which showed two open take-away boxes placed in front of a gym bag. One box contained a portion of battered chicken, the other box contained a portion of fries. The boxes and a bag behind them featured the Morley’s logo. The caption stated “South London born & raised. Partnering with @morleysuk feels full circle”[…] “Same roots. Same South London” […]”
Issue
The complainant challenged whether the ad was a paid ad for an identifiable less healthy food product placed on the internet.
Response
Morley’s (Fast Foods) Ltd t/a Morley’s confirmed that Ms Scotney’s post was a paid ad, and they had arranged its placement.
They said the products shown in the ad were battered chicken and fries, and that they considered those items were likely to be products high in fat, salt or sugar (HFSS) and therefore “less healthy” foods.
They had been unaware of the scope of the CAP Code with respect to “less healthy” food and drink, but after they were contacted by the ASA they had immediately asked Ms Scotney to remove the post. They also said that they had also conducted a full audit of their social media content, their contracts with influencers, and had obtained additional advice to ensure their future content complied with the rules.
Ms Scotney’s management agency confirmed that Morley’s had paid for the ad and asked for the food items to be included in the post. They confirmed that the post had been removed.
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.
The ASA noted that Morley’s had paid for the ad to be placed on Instagram by Ms Scotney.
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 ad featured a photographic image of two full Morley’s food boxes, the contents of which were not named but which appeared to be battered chicken and fries, with the text “Morley’s 40 YEARS” written across them. The accompanying text included the wording “Partnering with @morleysuk”. We therefore considered that consumers could reasonably be expected to identify that the ad was for the Morley’s brand overall, the range of menu items available from Morley’s including “less healthy” products that were sold by them and including the two food items shown in the boxes.
Brand advertisements, which were ads 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.
The ASA must therefore consider which of the following scenarios applied to the ad:
(1) An ad which depicted a specific “less healthy” food from the Morley’s menu would be in breach of the “less healthy” food rule.
(2) An ad which depicted a specific non-“less healthy” food from the Morley’s menu, 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 Morley’s menu item, but did not identify which specific product it was, we must assess whether the food shown was visually indistinguishable from any specific “less healthy” food in the Morley’s range. 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.
The ad showed photographic images of battered chicken and fries.
We considered that battered chicken fell within the “less healthy” food Category 13. It was described in law as including “[…], “breaded or battered […] meat or poultry products”, and more generally “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 also considered that fries, as a menu item, fell within Category 13, as well as Category 12 which related to potato products, including “potato and sweet potato chips, fries and wedges”.
Morley’s had not provided us with nutrient profiles for the food items and we were therefore unable to confirm that they were classified as HFSS. However, Morley’s accepted that the items were classified as HFSS foods and we had not seen evidence to the contrary. On that basis, we concluded that the battered chicken and fries shown in the ad were “less healthy” foods. Therefore the ad depicted two specific “less healthy” foods and scenario 1, as referenced above, applied.
Because the ad was a paid ad placed on the internet which depicted two specific “less healthy” products, we concluded it 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 Morley’s (Fast Foods) Ltd t/a Morley’s to ensure that their paid-for ads on the internet were not for identifiable “less healthy” foods.
