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 post for YO!, seen on 28 April 2026, featured a sequence of animated images. Large text on a red and gold background with cherry blossom stated, “better than an egg”. The background then turned red, and white text stated, “Have a break”, with the word “break” splitting into two halves. Small YO! and KitKat logos appeared at the bottom of the image and further white text stated, “from tradition”. The text then disappeared and the two logos moved to the centre of the image. An overlaid text box stated, “Have a break from tradition” and further text stated, “YO! yosushi.com”. Beneath the animation, text stated, “Made with KITKAT® Cream Puff” alongside a button labelled “Learn more”.
Issue
Bite Back challenged whether the ad breached the Code because it was a paid ad for identifiable less healthy food products placed on the internet.
Response
YO! Sushi UK Ltd t/a YO! said the ad had run for a limited time over the Easter period. They confirmed that the ad was created and paid for by YO!, and that the limited-edition Chocolate Cream Puff made with KitKat® was classified as high in fat, salt or sugar (HFSS). They said they had no written agreement with Nestlé UK Ltd (Nestlé) in relation to the ad and there had been no payments made between the two parties, although YO! had committed to purchase the relevant KitKat ingredients through third-party procurement partners.
YO! had intended to promote their brand collaboration with the KitKat brand, rather than a specific product, and the version of the ad they had signed off with their digital agency had not included the text “Made with KITKAT® cream puff”. Those words had been added in error late in the sign-off process, and their inclusion was not identified before the ad went live.
YO! accepted that, although no specific food imagery was shown in the ad, the added wording had had the effect of depicting the Chocolate Cream Puff made with KitKat®. They said they had taken steps to ensure the issue would not be repeated.
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.
CAP Code rule 15.19 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. The ASA understood that YO! Sushi UK Ltd had paid for the ad to be placed on the internet. We further understood that Nestlé had not been involved in the funding or placement of the ad. We concluded YO! was therefore solely responsible for the ad’s placement online for the purposes of 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 logos for YO! and “Made with KitKat” were present throughout the ad. The text “Have a break”, which formed part of a long-standing slogan associated with the KitKat brand, appeared in large type, followed by the words “from tradition”. Although the ad did not feature images of food, the text “Made with KITKAT® cream puff” remained on screen throughout. We understood that YO!'s menu featured only one cream puff product, the Chocolate Cream Puff made with KitKat®. We considered that consumers could therefore reasonably be expected to identify that the ad was for the YO! and KitKat brands, including “less healthy” products, and additionally for the Chocolate Cream Puff made with KitKat® menu item.
Brand advertisements, which were ads that promoted a brand, including the brand of a range of products, were exempt from the rule. However, ads which depicted a specific “less healthy” product were not brand advertisements and therefore were subject to the rule. We therefore assessed whether the ad was a brand advertisement.
We considered that the YO! and “Made with Kitkat” logos, along with the slogan “Have a break” related to the overall respective brands, which both encompassed a range of different food and drink products, and therefore depicted the brands of a range of products rather than any specific “less healthy” product. We acknowledged that this had been the advertiser’s intention. However, because the ad also featured a specific menu item, it depicted a specific food product. We therefore assessed whether the product that was identifiable in the ad 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 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 Chocolate Cream Puff made with KitKat® was classified as an HFSS product. It also fell within the “less healthy” food Category 9, which was described in law as “Desserts & puddings”. The Chocolate Cream Puff made with KitKat® was therefore a “less healthy” food, the advertising of which was restricted by the “less healthy” food rule.
We concluded that the ad was a paid ad for an identifiable “less healthy” food, 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 YO! Sushi UK Ltd t/a YO! to ensure their paid ads on the internet were not for identifiable less healthy foods, such as through the inclusion of text that depicted a specific less healthy food product.
