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.
Summary of Council decision:
Two issues were investigated, both of which were Not upheld.
Ad description
An Instagram post by @onlyscrans, and a paid Instagram ad, for Popeyes:
a. The Instagram post by influencer Jono Yates (@onlyscrans), seen 11 April 2026, began with Mr Yates standing outside a Popeyes restaurant. The voice-over stated, “Did you know that Popeyes do breakfasts in the UK and they are giving away a million free ones […] So this is their Big Cajun Wrap. We’re talking Cajun ketchup, cheese, free-range eggs and their chicken breakfast patty […] And this is the finished product.” Shots showed him holding a hash brown up to the camera and shaking seasoning over hash browns in a container, and a Big Cajun Wrap being assembled and placed in a cardboard packet. A tray was shown with two coffee containers, two wrap packets, two wrapped muffins and four hash browns in paper bags. He was then shown holding an unwrapped Big Cajun Wrap up to the camera.
The voice-over continued, “They’ve got coffee as well […]. Cajun hash browns.” Shots showed an English muffin being cut and spread with butter, eggs cooking, and a cooked egg added to a muffin with a cheese slice. He was shown holding up the finished egg and cheese muffin to the camera and eating it. The voice-over concluded, “[…] So with one million free Big Cajun Wraps up for grabs you’d be mad not to get involved. Details are in the caption.”
The visible part of the caption stated “Ad POPEYES ARE GIVING AWAY ONE MILLION FREE BRE…”. Clicking to see more brought up the additional text “[…] BREAKFASTS! All you need to do is download and register on the Popeyes App from 14th-20th April and your FREE Big Cajun Wrap will be waiting for you. T&Cs apply, available in all Popeyes restaurants and drive thrus that serve Breakfast. Enjoy your taste of New Orleans”.
b. The paid Instagram ad, seen 16 April 2026, featured an image of a wrap filled with a hash brown, meat patty, egg, cheese and red sauce. Text stated “Rise & Shine with our New Orleans inspired Breakfast Menu”. The visible part of the caption stated “Rise and Shine with our New Orleans inspired Breakfast Menu. Bringing bold flavour to…more”. Clicking on “more” brought up the rest of the caption: “[…] Bringing bold flavour to your morning. Served ‘til 10.30am”.
Issue
- One complainant challenged whether ad (a) was a paid ad for an identifiable less healthy food product placed on the internet.
- One complainant challenged whether ad (b) was a paid ad for an identifiable less healthy food product placed on the internet.
Response
1. PLK Chicken UK Ltd t/a Popeyes said ad (a) showed only three food products in the visuals: the Big Cajun Wrap with Chicken Breakfast Patty, the Cajun Hash Brown and the Egg and Cheese Muffin. None of those menu items were classified as high in fat, salt or sugar (HFSS) and therefore they were also not classified as “less healthy” foods. They provided a nutrient profile calculation for each item.
They said the Big Cajun Wrap with Chicken Breakfast Patty was referenced in the voice-over and on-screen text and believed it was therefore clear that was the specific menu item shown. Their menu also included a Big Cajun Wrap with Chicken Breakfast Patty and Streaky Bacon, but they said that if the ad had featured that item it would have specifically referenced the Streaky Bacon. Additionally, they considered the reference to the “Big Cajun Wrap” clearly distinguished the wrap featured in the ad from a further menu item called the Big Breakfast Wrap with Chicken Breakfast Patty.
There were two Hash Brown items on their menu: the Hash Brown and the Cajun Hash Brown. They said the ad clearly referred to the Cajun Hash Brown in the voice-over and in on-screen text. Notwithstanding that, the Hash Brown was also not classified as HFSS.
Popeyes noted that while the Egg and Cheese Muffin was not named during the ad, the preparation process was shown. They considered it clearly showed the egg and cheese and no further ingredients such as bacon or a chicken patty, which were included in other Muffin menu items. They considered it was therefore clear from the visuals that the specific menu item shown was the Egg and Cheese Muffin.
They said the coffee referenced in the ad was an Americano which was not classified as HFSS. However, they noted the ad only referenced “coffee”, briefly, in the voice-over. They said consumers would understand that to be a reference to coffee generically rather than to a specific preparation style such as an Americano. Additionally, the cup shown on-screen was used for six different coffee drinks on the menu.
The ad also referenced a breakfast promotion, in which “free Big Cajun Wraps” were available. They said that while the promotion enabled customers to benefit from another product, the ad only made reference to the Big Cajun Wrap with Chicken Breakfast Patty.
They believed that consumers could not reasonably be expected to be able to identify that the ad was for a less healthy food or drink product or products.
2. Popeyes said the Big Cajun Wrap with Chicken Breakfast Patty was also the menu item featured in the image in ad (b). They said that while the ad did not name the item, it referenced the “New Orleans inspired Breakfast Menu”. Cajun was intrinsic to New Orleans food culture and they considered the reference to New Orleans therefore distinguished that the wrap was one of their “Big Cajun” wraps rather than one of their “Big Breakfast” wraps. Additionally, because there was no bacon visible in the imagery of the wrap, it was clear that the wrap was the Big Cajun Wrap with Chicken Breakfast Patty, and not the version which also had bacon.
For those reasons they considered that consumers could reasonably be expected to identify that the ad was for the Big Cajun Wrap with Chicken Breakfast Patty. However, they acknowledged that including the name of the item in the ad would have improved the clarity of the product signposting and would do so in future.
Assessment
1. Not 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 understood that Popeyes had paid for ad (a) to be placed on the internet by Mr Yates.
The test determining whether an ad was covered by the restrictions was set out in law, as reflected in CAP 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.
We considered consumers could reasonably be expected to identify that the ad was for the specific menu items referenced in the voice-over and on-screen text, and shown in the visuals. We considered consumers could reasonably be expected to identify that the ad was also for Popeyes’ breakfast offering more generally, including food and drink products that were “less healthy”, as well as for the giveaway promotion which encouraged viewers to download Popeye’s app to get a free Big Cajun Wrap.
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 or drink sold by Popeyes would be in breach of the “less healthy” food rule.
2. An ad which depicted a specific non “less healthy” food or drink sold by Popeyes, by clearly identifying it as that specific non “less healthy” food or drink (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 or drink but did not identify which specific food or drink it was, we must assess whether the food or drink shown in the ad was visually indistinguishable from any specific “less healthy” food or drink sold by Popeyes. That was the case whether the realistic image in the ad was of a “less healthy” food or drink, or a non “less healthy” food or drink. If it was visually indistinguishable from a “less healthy” food or drink, the ad would be in breach of the “less healthy” food rule.
While Popeyes had said that the coffee in the ad was an Americano, it was only described in the ad as “coffee”, while a lidded coffee cup was shown on the tray. We considered those were therefore generic references to coffee which could encompass a range of different coffee preparations. As such, the ad did not depict a specific coffee product and the visual and spoken references to coffee fell under the brand advertising exemption.
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 from Popeyes that the video in the ad showed the Big Cajun Wrap with Chicken Breakfast Patty, the Cajun Hash Brown and the Egg and Cheese Muffin. We first assessed whether those products were “less healthy” products. Wraps and filled muffins fell within the “less healthy” food Category 13, which included sandwiches of any kind. Hash browns fell within “less healthy” food Category 12, relating to potato products. All three items also fell within the section of “less healthy” food Category 13 which covered products ordered from a menu which by themselves, or together with other products from the same menu, were intended to be consumed as a complete meal.
However, the Big Cajun Wrap with Chicken Breakfast Patty, Egg and Cheese Muffin and Cajun Hash Brown were not HFSS foods and therefore also were not classified as “less healthy” foods. The imagery in the ad was therefore of products that were not classified as “less healthy”; the ad did not depict any specific less healthy products. Scenario 1, as referenced above, therefore did not apply.
We next considered scenario 2.
We considered that the combination of the visuals of the wrap being prepared and in its ‘as served’ form, along with the references to it as the “Big Cajun Wrap” and the description that it included a “Chicken Breakfast Patty” in the voice-over and on-screen text meant that the Big Cajun Wrap with Chicken Breakfast Patty was clearly identified.
While the ad showed prominent visuals of hash browns several times before specifically naming them as the Cajun Hash Brown in the voice-over and on-screen text, we noted the hash browns shown throughout had the same visual appearance, with a red-brown colour, and one shot showed Mr Yates shaking the red seasoning on them. In that context we also considered the hash browns were clearly identified as the Cajun Hash Brown.
Scenario 2 therefore applied to those two identified items; they were specific non “less healthy” foods and therefore their depiction in the ad was not in breach of the “less healthy” product rule.
In contrast, visuals were shown of the muffin in preparation while the voice-over and on-screen text described the general availability of Popeyes’ breakfast menu, and the giveaway promotion. The muffin’s ingredients were not referenced in the voice-over or on-screen text, nor was it named at any point. We therefore considered the ad did not clearly identify which specific muffin was shown. Scenario 2 therefore did not apply to that item.
We therefore assessed whether the realistic imagery of the muffin in the ad was visually indistinguishable from any specific less healthy food product sold by Popeyes, as referenced at scenario 3.
We considered that the muffin in the ad’s imagery, which comprised of an English muffin, poached egg and slice of cheese, was visually indistinguishable from an image of the Egg and Cheese Muffin on Popeyes’ website. There were an additional four muffins on Popeyes’ menu, which all featured either bacon or a Chicken Breakfast Patty in addition to the egg and cheese. We considered those muffins were therefore visually distinguishable from the one in the ad.
There were also a number of other sandwich-type menu items on Popeyes’ menu, including a range of chicken burgers, a Red Bean Creole Sandwich, a Chicken Cruncher sub roll, and a number of breakfast rolls. All those items used bread rolls that were visually distinguishable from the English muffin used for the muffin in the ad.
In conclusion, the voice-over and visual references to “coffee” in the ad were generic references which fell under the brand advertising exemption. The two specific items which were identified – the Big Cajun Wrap with Chicken Breakfast Patty and Cajun Hash Browns – were not HFSS and therefore were non “less healthy”, and therefore their depiction did not fall within scope of the rule. Finally, the realistic image of the muffin was not visually indistinguishable from any specific less healthy food and therefore fell under the brand advertising exemption. As such, ad (a) was a brand advertisement. We concluded the ad was therefore out of scope of the “less healthy” product rule and did not breach the Code.
On that point, we investigated ad (a) under CAP Code (Edition 12) rule 15.19 (Placement of less healthy food and drink product advertisements online), but did not find it in breach.
2. Not upheld
Popeyes had paid for ad (b) to be placed on the internet. We therefore also investigated that ad under CAP Code rule 15.19, and the tests set out in law that it reflected.
The ad featured a photographic image of a wrap, and referenced the Popeyes “New Orleans inspired Breakfast Menu”. We considered consumers could reasonably be expected to identify that the ad was for the featured wrap and for Popeyes’ breakfast offering more generally, including food and drink products that were “less healthy”.
We therefore also considered ad (b) under the three Scenarios set out above under Point 1.
We understood from Popeyes that the photographic image in the ad showed the Big Cajun Wrap with Chicken Breakfast Patty. As set out above, that product was not classified as HFSS and therefore also was not classified as “less healthy”. The ad did not depict a specific less healthy product, and Scenario 1 therefore did not apply.
We considered the ad’s reference to Popeyes’ “New Orleans Inspired Breakfast Menu” was not sufficient to identify that the specific wrap shown in the image was the Big Cajun Wrap with Chicken Breakfast Patty. Scenario 2 also therefore did not apply.
We therefore assessed whether the realistic image of the wrap in the ad was visually indistinguishable from any specific less healthy food product sold by Popeyes, as referenced at scenario 3.
We considered the wrap in the ad’s image was visually indistinguishable from an image on Popeyes’ website of the non-“less healthy” Big Cajun Wrap with Chicken Breakfast Patty, which also clearly showed a wrap filled with a red-brown coloured hash brown, meat patty, poached egg, cheese slice and red sauce.
Popeyes sold a number of wraps which included breaded chicken and salad items; we considered the wrap in the ad was therefore visually distinguishable from images of those wraps.
We then compared the image in the ad with images of the ‘breakfast’ wraps on Popeyes’ menu. There were four, including the Big Cajun Wrap with Chicken Breakfast Patty. We considered the wrap in the ad was visually distinguishable from an image of the Big Cajun Wrap with Chicken Breakfast Patty & Streaky Bacon, which clearly showed bacon.
The two other wraps were the Big Breakfast Wrap with Chicken Breakfast Patty & Heinz Ketchup, and the Big Breakfast Wrap with Chicken Breakfast Patty & HP Sauce. At the time the ASA began its investigation the images of those two wraps on Popeyes’ website were identical: both showed red sauce, albeit that the latter wrap was described as including HP Sauce, a brown sauce. However, during the investigation Popeyes provided a new image of the variant containing HP Sauce, and updated their website with that image. It clearly showed brown, rather than red, sauce. We considered the visible brown sauce in the updated image of the HP Sauce variant meant that the wrap was visually distinguishable from the wrap in the ad.
Both “Big Breakfast” wraps otherwise included a hash brown, meat patty, poached egg and a slice of cheese. We considered those wraps were therefore visually similar to the wrap in the ad, except that the hash browns were light brown rather than red-brown in colour. We understood that was because the “Big Breakfast” wraps included the standard Hash Brown, whereas the “Big Cajun” wraps included the Cajun Hash Brown. We considered the colour variation between the hash browns in the wraps was sufficiently different that the wrap in the ad was visually distinguishable from both the Big Breakfast Wrap with Chicken Breakfast Patty & HP Sauce and the Big Breakfast Wrap with Chicken Breakfast Patty & Heinz Ketchup.
Because the realistic image of the wrap in the ad was not visually indistinguishable from any specific less healthy food, we concluded the ad was a brand advertisement. We concluded ad (b) was therefore out of scope of the “less healthy” product rule and did not breach the Code.
On that point, we investigated ad (b) under CAP Code (Edition 12) rule 15.19 (Placement of less healthy food and drink product advertisements online), but did not find it in breach.
Action
No further action necessary.
