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.
Ad description
A TV ad for On the Beach, seen in the evening before 9.00 pm on 7 January 2026, featured a family arriving at an airport. The voice-over stated, “Look at ‘em go. Booking geniuses. They booked a five-star holiday and got free airport lounge access.” A shot showed the father and son approaching a bar, followed by a closer shot of the boy taking a chocolate ring doughnut from the bar and putting it onto his plate, and then some grapes, as the voice-over continued, “Fill your boots, son. Slap on your best smug face.” Another shot showed the family sitting at table with food and drinks. Closing shots showed the family at a beach, as the voice-over stated, “This holiday's gonna be a belter. Get free airport lounge access on 2026 five-star holidays with On The Beach. Book it now. ABTA and ATOL protected.” Large on-screen text at the end stated, “On the Beach FREE LOUNGE”.
Issue
The complainant challenged whether the ad was for an identifiable less healthy food product and was included in television programme services between 5.30am and 9.00pm.
Response
On The Beach Ltd understood that for an ad to be within the scope of the rules applicable to the advertising of “less healthy” foods, the average well-informed and observant consumer must be able to identify that the ad was for an identifiable less healthy food product. They considered the ad did not meet that threshold for two reasons: the primary promotional message of the ad related to the overall holiday experience of booking with On The Beach; and the doughnut appeared only incidentally.
With regard to the primary promotional message, they said the average consumer would reasonably understand the ad was promoting On The Beach’s free airport lounge access for five-star holidays, rather than promoting any specific food product. The ad’s focus was on the overall holiday experience, and in particular the added value of lounge access. That included complimentary Wi-Fi, charging points, and food and drinks.
Additionally, the doughnut was shown only briefly in the ad – being visible for less than one second – and formed part of a wider buffet setting typical of an airport lounge. There was no particular focus or narrative cue to draw the viewers’ attention to the doughnut. It was purely an illustrative example of food that may be available in an airport lounge.
They said CAP Guidance on the “Advertising of less healthy food and drink products” stated that imagery of less healthy products that viewers were unlikely to recognise when viewing an ad in real time, and food shown incidentally (such as food on tables in a restaurant setting), was unlikely to mean that consumers would identify the ad as being for a less healthy product. They considered the inclusion of the doughnut was analogous to such examples and did not form the focus of the ad’s promotional message.
On The Beach’s view was that even if the ASA concluded consumers would identify the ad as being for an identifiable less healthy food, the ad fell within an exemption to the rule, which allowed for brand advertising. The ad promoted the On The Beach brand more generally, and the free airport lounge access for five-star package holidays. The ad did not depict a specific less healthy food, because the doughnut was a representative example of the items available as part of the complimentary buffet at an airport lounge, rather than a specific standalone or purchasable item.
Additionally, the CAP Guidance stated that ads by businesses not directly involved in the supply of food or drink would be highly unlikely to be subject to the rules, even where such ads incidentally portrayed characters consuming less healthy food. On The Beach was an online travel agent offering holidays and various travel perks to its customers. The portrayal of a child choosing a doughnut from a buffet in an airport lounge setting was incidental to the main purpose of the ad and was unlikely to be perceived by consumers as promoting the purchase and consumption of a doughnut.
Clearcast said they considered the most important factors when approving the ad were that: the food featured was not identifiable in such a way that a calculation of its nutrient profile could be carried out; the advertiser was an online travel agent; and the ad was predominantly for an airport lounge access offer.
They said On The Beach had confirmed that the ad was not filmed in an airport where the offer would be available, and the food used was a prop and was not available to eat at the airport lounge used for filming. Therefore, while both the airport and the prop food gave viewers an accurate and representative example of the free airport lounge access experience, viewers would not identify the prop doughnut as food that would always be provided by airport lounges included in the offer. Clearcast noted that airport lounges offered various types of food, which differed by lounge and also changed periodically. However, they would not provide a doughnut that looked like the one shown in the ad. It was therefore not a specific product capable of being purchased.
Moreover, Clearcast did not expect that any viewer would identify the ad as being for food. The ad was for an online travel agent and it showcased their offers that related to travel and luxury, rather than food. Viewers would not consider taking up On The Beach’s offering based on the food provided in airport lounges.
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 5.30am and 9.00pm.
The ad was seen by the complainant in TV programme services during the day, before 9.00pm.
The ASA acknowledged that On The Beach was an online travel agency and not a food or drink manufacturer or retailer. However, the legislation underpinning the Code rule did not specify that its requirements applied only to businesses involved in the manufacture or sale of food or drink. We therefore considered that On The Beach’s ad did not fall outside of the scope of BCAP Code rule 32.21 on that basis. We therefore 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.
The ad promoted On The Beach’s offer of free airport lounge access for customers who booked a five-star holiday package deal, emphasising the family were “booking geniuses” for taking advantage of it. The majority of the ad showed the family in an unidentified airport and airport lounge, with a shorter series of shots of them enjoying their holiday destination at the end of the ad.
Airport lounges included benefits such as complimentary food and drink, Wi-Fi, comfortable seating, and a less busy environment. We considered the benefit of complimentary food was an appealing part of the offering, and noted it was the benefit that was most obviously depicted in the ad, illustrated by the boy taking a doughnut and grapes from a buffet and the immediately preceding voice-over comment, “Fill your boots, son”. However, we considered consumers were likely to interpret this – and the other food and drink shown – as a generic representation of the benefits that may be available in lounges included in the offer, as opposed to advertising of the food and drink products shown.
We considered that consumers who viewed the ad could not reasonably be expected to identify that the ad was for the doughnut. Rather, they would identify the ad as being for the perk of free airport lounge access if they purchased a five-star holiday from On The Beach. We therefore concluded that the ad was not for an identifiable less healthy product. It therefore fell outside 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.
