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 Video on Demand pause ad, seen on Netflix on 7 January 2026, for Uber Eats and Burger King. The ad showed an image of a burger in a bun with lettuce, onions and other items with accompanying text that stated “When you’ve adult’d enough”. Underneath the image of the burger the Uber Eats and Burger King logos were shown.
Issue
The complainant challenged whether the ad was a paid-for ad for an identifiable “less healthy” food product placed on the internet.
Response
Uber Eats UK Limited t/a Uber Eats confirmed that the ad was created and paid for by Uber Eats. They said the product featured in the ad was the Burger King Whopper burger. It was not classified as high in fat, salt or sugar (HFSS), and therefore was not a “less healthy” food.Uber Eats said that because the Whopper was Burger King’s signature burger in the UK it was well-recognised by consumers. They would not mistake the burger in the ad for any other burger on the menu. Consumers would therefore identify the ad as being for the Whopper, and therefore for a food that was not “less healthy”. As a result, Uber Eats considered that the ad complied with the Advertising Code, and the exemption in the “less healthy” food rule for brand advertising was not relevant to the ASA’s considerations.
Notwithstanding that, they also believed that if the ASA did assess the ad under the brand advertising exemption, including whether any exclusions to the exemption applied, the ad would still be in compliance with the Code.
They noted that CAP Guidance on the “Advertising of less healthy food and drink products” (the Guidance) defined a “brand advertisement” as one that promoted the brand of a range of products. They said that the ad was a brand advertisement insofar as it was clearly for the Burger King and Uber Eats brands overall. They noted the Guidance also set out that there were exclusions to the brand advertising exemption. One of those exclusions was that if an ad featured a realistic image of a food or drink product, and the product was visually indistinguishable from a specific “less healthy” product, the brand advertising exemption would not apply.
Uber Eats acknowledged that the Whopper was visually indistinguishable from the plant-based Whopper. However, that burger also was not HFSS, and therefore also was not classified as “less healthy”. They provided nutrient profile information for both burgers. Additionally, all other items on the Burger King menu were visually distinguishable from the two Whopper burgers. For example, the Whoppers were distinguished from other Burger King burgers because they did not include cheese or bacon, and it featured a sesame seed bun rather than a brioche bun.
Uber Eats believed the ad therefore did not breach the Code.
BKUK Group Ltd t/a Burger King also provided comments. They confirmed the burger in the ad was the Whopper, and that it was non-HFSS, as was the plant-based Whopper. They considered the Whopper was visually distinguishable from other Burger King burgers, because of the number of patties, the addition of cheese and bacon, the absence of salad, and the type of bun. They considered the Whopper to be synonymous with the Burger King brand in the UK.
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 ASA noted that Uber Eats had paid to place the ad on Netflix. While Uber Eats did not sell its own food or drink products, it was a delivery service for food, drink and grocery items.
The test determining whether an ad was covered by the restrictions was set out in law, as reflected in 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.
The ad featured a photographic image of a burger, which was not explicitly identified, along with the logos and brand names of both Uber Eats and Burger King. We considered consumers could reasonably be expected to identify that the ad was for Uber Eats’ delivery service, and that this service included delivery of the specific Burger King burger shown, and the full range of items from Burger King’s menu, including “less healthy” foods. In the absence of additional information identifying which specific burger was featured, we considered consumers could not reasonably be expected to identify it based only on the image.
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. 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. A “specific” product was a product that was differentiated from other products, unless it was only differentiated by pack size or packaging format.
The ASA must therefore consider which of the following scenarios applied to the ad:
1. An ad which depicted a specific “less healthy” burger from the Burger King range would be in breach of the “less healthy” food rule.
2. An ad which depicted a specific non “less healthy” burger from the Burger King, by clearly identifying it as that specific non “less healthy” burger (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 Burger King burger, but did not identify which specific burger it was, we must assess whether the burger shown in the ad was visually indistinguishable from any specific “less healthy” burger in the Burger King range. That was the case whether the realistic image in the ad was of a “less healthy” burger or a non “less healthy” burger. If it was visually indistinguishable from a “less healthy” burger, the ad would be in breach of the “less healthy” food rule.
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 that the image shown in the ad was of the Burger King Whopper burger. We first assessed whether that product was a “less healthy” product. Burgers fell within the “less healthy” food Category 13. It included 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; and sandwiches of any kind. However, we understood the Whopper was non-HFSS. The image in the ad was therefore of a burger that was not classified as “less healthy”. The ad therefore did not depict a specific “less healthy” product; scenario 1, as referenced above, did not apply.
Additionally, the ad did not explicitly identify the burger, for example by including the product’s name; scenario 2 also did not apply.
We must therefore assess whether the burger shown in the ad was visually indistinguishable from any specific “less healthy” burger sold by Burger King, as referenced at scenario 3.
The burger shown in the ad comprised of a single beef patty, in a bun with sesame seeds, and included lettuce, slices of tomato, onion and pickles. We considered the image was visually indistinguishable from an image of the Whopper on Burger King’s website, which showed the same ingredients arranged in the same way.
We then compared the image of the burger in the ad with images of other burgers sold by Burger King at the time the ad was seen. The Whopper range of burgers also included a Whopper with Bacon and Cheese, a Double Whopper, and a Double Whopper with Bacon and Cheese. We noted that the number of patties in the bun, or the inclusion of cheese and bacon, distinguished those burgers from the burger shown in the ad. While the plant-based Whopper substituted the beef patty for a plant-based patty, the colour and texture of the patty appeared exactly the same as the patty in the burger in the ad. It also included lettuce, tomato, onion and pickle slices arranged in the same way as those in the burger in the ad. We considered the plant-based Whopper was therefore visually indistinguishable from the burger in the ad. However, the plant-based Whopper was also non-HFSS, and therefore not classified as “less healthy”.
The website menu offered a range of other burgers with beef patties, breaded chicken patties, and vegetarian or vegan alternatives. We considered that because it contained a beef patty, the burger in the ad was visually distinguishable from all Burger King chicken burgers. We also considered that burger in the ad was distinguishable from all Vegan Royale burgers, because the vegan patty was more oval in shape, pale brown in colour and appeared to be breaded. Other Burger King beef burgers were visually distinguishable from the burger in the ad due to the inclusion of additional or differently-shaped patties, the presence of cheese, absence or use of different salad and vegetable ingredients, or different types of bun.
Because the realistic image of the burger in the ad was not visually indistinguishable from a specific “less healthy” food or drink, we concluded that the ad was a brand advertisement. We concluded the ad was therefore out of 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 necessary.
