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 promoted LinkedIn post from The Trade Desk, a media buying platform, seen on 31 January 2026, included the caption “Lasting loyalty starts with sharing the right message, with the right people. That’s why iconic brands like Reese’s partner with The Trade Desk”. An image included large text which stated “Making brands like Reese’s the snack they always reach for” and a photo of a pack of two Reese’s Peanut Butter Cups in a person’s hand. The Trade Desk’s logo appeared underneath the pack shot. Further text stated “Because Advertising Matters thetradedesk.com”.
Issue
The complainant challenged whether the ad was a paid ad for an identifiable less healthy food product placed on the internet.
Response
The Trade Desk, Inc t/a The Trade Desk noted that CAP Guidance on the “Advertising of less healthy food and drink products” stated ads by businesses not directly involved in the supply of food or drink would be highly unlikely to be subject to the rules applicable to the advertising of “less healthy” foods, even if the content featured food and drink product-related references.
They explained they were an independent global media buying platform, and their demand-side platform and its brand was well-known in the advertising industry. They were not involved in the manufacture, distribution, or sale of food products. The ad was part of a global business-to-business campaign promoting The Trade Desk to a targeted audience of marketing and media-buying professionals at brands and agencies. Ads in the campaign referenced various of The Trade Desk’s large global advertiser clients, with permission from the relevant brand.
The ad seen by the complainant was placed only on LinkedIn, and very specific criteria was used to target it exclusively at a niche audience of senior marketing, media and communications professionals in the UK. They provided details, which they said were commercially sensitive.
For an ad to be within the scope of the rules, the average well-informed and observant consumer must be able to identify that the ad was for an identifiable less healthy food product. They believed persons in the UK could not reasonably be expected to identify that the ad was for Reese’s Peanut Butter Cups.
The ad was posted from The Trade Desk’s LinkedIn account and clearly identified as The Trade Desk content. While the product was visible the text, call to action and overall messaging was focused on The Trade Desk’s advertising services; the Reese’s imagery served as illustrative content of The Trade Desk’s capabilities and client base. The copy was directed at potential business clients: “Lasting loyalty starts with sharing the right message, with the right people. That’s why iconic brands like Reese’s partner with The Trade Desk”. The Trade Desk was mentioned a further four times, and its logo appeared twice. The “Learn more” call to action took users to The Trade Desk’s website; there was no call to action encouraging purchase or consumption of Reese’s Peanut Butter Cups, nor any information about where to buy the product.
Additionally, the senior marketing, media and communications professionals to whom the ad was targeted would generally be aware of The Trade Desk and would therefore perceive the ad as being for The Trade Desk rather than for Reese’s.
The Trade Desk confirmed that while they had provided a copy of the ad to The Hershey Company before publication, in line with the Intellectual Property agreement between the two companies, the ad was created and placed entirely at The Trade Desk’s own expense and initiative, for The Trade Desk’s own commercial purposes.
Assessment
Upheld
CAP Code rule 15.19 required that persons must not pay for ads for an identifiable less healthy food or drink product to be placed on the internet. The tests determining whether an ad was covered by the restrictions were set out in law, as reflected in the Code.
The Trade Desk had paid to place the ad on LinkedIn, which was a professional networking platform. The ASA noted that its user’s profiles were therefore focused on their job role and the sector in which they worked, and they were using the platform in their professional capacity.
Advertisements directed solely at persons who were engaged in, or employed by, a business which involved or was associated with the manufacture or sale of food or drink, were exempt from the rule. We first assessed whether the ad fell under that exemption. The documentation relating to the targeting criteria used by The Trade Desk demonstrated the ad had been targeted to senior marketing, media and communications professionals. However, it also showed the ad had been targeted to people working for a wide range of companies whose business was completely unrelated to the manufacture or sale of food or drink. We considered the ad therefore had not been directed solely at persons who were engaged in, or employed by, a business which was involved or was associated with the manufacture or sale of food and drink.
The Trade Desk was a media buying platform 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 next assessed the ad whether consumers who viewed the ad could reasonably be expected to identify that the ad was for a less healthy food or drink product. 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.
CAP’s Advertising Guidance on the “Advertising of less healthy food and drink products” 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, if the content of the ad featured food and drink product-related references like generic imagery of food or drink products. It further stated that where such advertisers engaged in a joint ad with a business that was involved directly in the supply of food or drink products, the ad was more likely to fall in scope of the rules because of how the involvement of such a party was likely to influence the content of the ad and the audience’s understanding of what was is for under the “identifiability test”. The party (or parties) paying for an ad to be placed was responsible for ensuring compliance with the rules.
The ad was targeted to UK advertising, marketing and public relations professionals, on the LinkedIn platform, and we therefore assessed it from the perspective of that audience. In the context of the references to The Trade Desk, and the wording of the caption and the large text “Making brands like Reese’s the snack they always reach for”, we considered those consumers could reasonably be expected to identify the ad as being for The Trade Desk.
The ad also referenced the Reese’s name in the caption and large text, and featured a prominent image of a pack of Reese’s Peanut Butter Cups; that was not generic imagery of a food, and the image was not incidental. We acknowledged the ad was created and paid for solely by The Trade Desk. However, we considered consumers would interpret the ad’s messaging and prominent depiction of the Reese’s Peanut Butter Cups as featuring the product positively, and therefore as promoting the product as well as The Trade Desk’s services. We therefore considered consumers could reasonably be expected to identify that the ad was for Reese’s and for Reese’s Peanut Butter Cups as well as for The Trade Desk.
The ad depicted the specific product Reese’s Peanut Butter Cups, and we therefore assessed whether that product was a “less healthy” food. To be “less healthy” a food or drink must meet two tests, set out in the rule. Firstly, it must be classified as high in fat, salt or sugar (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 Trade Desk had not provided a nutrient profile calculation for Reese’s Peanut Butter Cups. However, we understood the product was classified as HFSS, and we noted it fell within the “less healthy” food Category 4, which was described in law as “Confectionery including chocolates and sweets”. Reese’s Peanut Butter Cups were therefore a “less healthy” food, the advertising of which was restricted by the “less healthy” food rule.
Because the ad was for Reese’s Peanut Butter Cups as well as for The Trade Desk, we concluded that the ad was a paid 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 The Trade Desk, Inc t/a The Trade Desk to ensure their paid ads on the internet were not for identifiable less healthy foods.
