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 ad on Instagram for Monty Bojangles, seen on 19 March 2026, featured an image of two milk chocolate eggs, one wrapped in blue foil and one unwrapped. The image also featured the packaging for each egg and some unwrapped chocolate truffles. The turquoise packaging stated “Chocolate Egg & Truffles Choccy Scoffy Flutter Scotch Berry Bubbly”. The purple packaging stated “Chocolate Egg & Truffles Signature Choccy Scoffy”. The caption stated “Say it with truffles this Easter [chick emoji, chocolate bar emoji] Now available at Waitrose.” Further text stated “Monty Bojangles Truffles at Waitrose”. The ad also featured a “Shop Now” button.
Issue
Bite Back challenged whether the ad was a paid ad for identifiable less healthy food products placed on the internet.
Response
The Monty Bojangles Co Ltd (Monty Bojangles) said they were a small or medium-sized enterprise (SME) and were therefore exempt from the restrictions on the advertising of “less healthy” products. They said their financial year ran from 1 June to 31 May. They supplied a copy of their most recently filed company accounts, dated 31 May 2025, which stated that the average monthly number of employees during the financial year June 2024 to May 2025 was 26. They also provided the most recent available accounts for three related companies and confirmed that those companies were currently dormant. They also provided payroll reports for June 2025 and April 2026. The 2025 report listed 29 employees.
The Monty Bojangles Co Ltd said they had created and paid for the ad. It had been placed via their Paid Social freelance employee. They supplied a Meta campaign summary page for March and April 2026 that detailed the spend associated with the ad, along with a Meta invoice and a company credit card statement that showed the total monthly advertising spend. They said Waitrose, a stockist of the featured products, had not been involved in the creation, approval, funding or placement of the ad.
Assessment
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 ad featured pack-shot images of two varieties of chocolate egg, with the wrapped and unwrapped contents displayed alongside. The ASA considered that consumers who viewed the ad could reasonably be expected to identify that the ad was for the two specific products depicted.
CAP Code rule 15.19 stated that the restriction did not apply where the person paying for the ad to be placed online was a food or drink SME, namely an enterprise that employed fewer than 250 people across the relevant businesses, including as part of a franchise agreement. The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (the Regulations) further defined a food or drink SME as an enterprise that: during a financial year, carried on one or more businesses which involved, or were associated. with the manufacture or sale of food or drink; and that, on the first day of that financial year, employed fewer than 250 people for the purpose of those businesses, including international staff.
The ASA first considered which company had paid to place the ad. The rule stated that payment for ads to be placed on the internet included the provision of any monetary or non-monetary consideration, as well as direct payment. We understood that The Monty Bojangles Co Ltd had paid for the ad to be placed on the internet. We further understood that Waitrose had not been involved in the creation, approval, funding or placement of the ad. We concluded that Monty Bojangles was therefore solely responsible for the ad’s placement online for the purposes of Code rule 15.19.
Monty Bojangles had made payment for the ad to be placed on the internet in April 2026. Their financial year ran from June to May. We therefore considered that 1 June 2025, as the first day of the financial year in which the ad was paid for, was the appropriate date for assessing Monty Bojangles’ headcount under the Regulations. We noted Monty Bojangles had provided a payroll report for the period 6 June to 5 July 2025. Given the proximity of those figures to the relevant assessment date, we considered them sufficiently reliable for the purpose of determining the total number of employees.
Monty Bojangles had provided company accounts for associated companies which had one or more directors in common. We understood that all those companies were dormant. We further understood that Monty Bojangles did not belong to a group that comprised parent, subsidiary or sister companies and that it did not operate any franchises. Monty Bojangles had also confirmed that there were no other related associated companies.
The June 2025 payroll report listed 29 individuals. We also understood from the company accounts that the average monthly number of employees during 2025 was 26. The employee figure was therefore consistent around the period in which payment for the ad was made. We therefore considered that on balance the evidence provided was sufficient to demonstrate that on the first day of the financial year in which The Monty Bojangles Co Ltd paid for the ad to be placed, it employed fewer than 250 people for the purposes of that business. We therefore considered that at that time Monty Bojangles was a food or drink SME for the purposes of the exemption. The ad therefore fell outside the scope of the rule and did not breach the Code.
We investigated the ad 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 required.
