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 Instagram ad for Morley’s Woking, a chicken restaurant, seen on Instagram on 16 February 2026. The image included text which stated “DEAL 1. 1 STEAK BURGER, 1 CHEESE BURGER, 4 WINGS, 6 NUGGETS, 1 LARGE FRIES, 2 DRINKS. £12.00”, next to images of two burgers, nuggets, wings, a packet of fries and two blue cans of Pepsi. Underneath, further text stated “DEAL 2. 1 STEAK BURGER, 1 CHEESE BURGER, 1 BUFFALO BURGER, 1 BBQ BURGER, 12 WINGS, 8 NUGGETS, 2 LARGE FRIES, 4 DRINKS. £22.00” next to images of four burgers, two packets of fries, wings and nuggets and four blue cans of Pepsi.
Text in a box superimposed across the image stated “Proudly serving Woking with legendary Morley’s taste. Signature fried chicken, burgers & wraps. Fresh and full of flavour. Order online or visit us!”. The caption at the bottom of the image stated “New January menu dropped and we’ve got some decent combo deals running …”. Clicking on that text brought up the full caption, which continued “£12 – steak & cheese burgers, 4 wings, 6 nuggets, large fries, 2 drinks. £22 – adds buffalo & BBQ burgers, bumps up to 12 wings, 8 nuggets, 2 large fries, 4 drinks. Pretty good value if you ask us. Available this month only. [beefburger emoji]”
Issue
The complainant challenged whether the ad was a paid-for ad for an identifiable “less healthy” food product placed on the internet.
Response
S&E1 Ltd, t/a Morley’s Woking said they were a franchisee for Morley’s (Fast Foods) Ltd and had paid to place the ad on social media. They were not aware of the specific restrictions regarding the advertising of “less healthy” foods, but as soon as they were told of the complaint they removed the ad and deactivated all of their own social media accounts.
They believed that all the menu items referenced in the ad, including the burgers, wings, nuggets, and fries would be considered products high in fat, salt or sugar (HFSS) and therefore “less healthy” products. However, they understood that the Pepsi drink pictured in the ad was not an HFSS product.
They said they did not have information to confirm if the entire franchise network was considered a small or medium enterprise (SME) for the purposes of the rules.
Morley's (Fast Foods) Ltd t/a Morley’s, the franchisor, also provided comments. They said the ad had been posted by the Morley’s Woking franchise without their knowledge. They confirmed the ad featured food from their menu which they considered were “less healthy” foods, but they did not have full nutrient profile calculations to confirm that. They also confirmed that Morley’s was not an SME for the purposes of the “less healthy” food rules. They said they had told franchisees about their obligations under the “less healthy” food and drink regulations and asked that any local social media account for an individual franchise was passed to them for approval. After they were contacted by the ASA they told all franchisees to remove local social media accounts. They said all ads would be approved by them in future.
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 understood that an individual franchisee of the Morley’s restaurant chain, S&E1 Ltd, t/a Morley’s Woking, had paid to place the ad on Instagram.
Advertisements paid for by a food or drink small or medium enterprise (a food or drink SME) were exempt from the “less healthy” food rule. A food or drink SME was a business that employed fewer than 250 people. However, for the purposes of calculating the number of employees, franchisee businesses were treated as part of the business of the franchisor. Taking into account people employed by Morley’s (Fast Food) Ltd and all their franchise businesses including S&E1 Ltd, we understood that Morley’s employed more than 250 people. Therefore the SME exemption did not apply to the ad.
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 referenced two set deals for January, and named various menu items that were included: steak, cheese, buffalo and BBQ burgers; wings; nuggets; fries; and “drinks”. As well as listing the content of both deals, the ad pictured the items, and showed cans of Pepsi. We concluded that consumers who viewed the ad could reasonably be expected to identify that the ad was for the two set meals, which included the specific food products listed, and that the drinks available included Pepsi.
We assessed whether the products that were identifiable in the ad were “less healthy” foods.
To be “less healthy”, a food or drink must meet 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.
We understood that Pepsi was not classified as HFSS, and ads for that product therefore were not restricted by the “less healthy” food rule.
We considered that the burgers, chicken nuggets and wings fell within the “less healthy” food Category 13. It was described in law as including “sandwiches of any kind”, “breaded or battered […] meat or poultry products” which included “chicken nuggets”, 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 considered that fries, as a menu item, also fell within Category 13, as well as Category 12 which related to potato products, including “potato and sweet potato chips, fries and wedges”.
Neither Morley’s Woking nor Morley’s (Fast Foods) Ltd had provided us with the nutrient profiles for the food items listed and pictured in the ad; we were unable to confirm that they were classified as HFSS. However, both parties accepted all the food items referenced in the ad were HFSS foods and we had not seen evidence to the contrary. On that basis, we concluded the burgers, wings, nuggets and fries were “less healthy” foods, the advertising of which was restricted by the “less healthy” food rule.
We concluded that the ad was a paid-for ad for identifiable “less healthy” foods, and 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 S&E1 Ltd t/a Morley’s Woking to ensure that their paid-for ads on the internet were not for identifiable “less healthy” foods.
