UK Advertising Rules on "Less Healthy" Foods Enter Into Force

In brief

• New advertising restrictions on "less healthy" foods are now in force. 
• They impose a 9pm watershed for advertising less healthy food and drink products on TV and a complete ban on paid-for online advertising of such products, aimed at tackling childhood obesity.  
• Advertisers can promote brands that may be associated with "less healthy" foods provided less healthy products are not "identifiable" in the advert itself (from the perspective of the average UK consumer), and SMEs with fewer than 250 employees will be exempt from the new restrictions. 
• Complying with the new rules could prove complex – The Advertising Standards Authority will assess advertisements on a case-by-case basis, and where the new less healthy food rules don't apply, existing advertising rules on high in fat, salt or sugar products may still be relevant.  

From 5 January 2026, the UK's new restrictions on the advertising of less healthy food and drink ("LHF") products finally entered into force, after The Advertising (Less Healthy Food Definitions and Exemptions) Regulations (the "2024 Regulations") were approved by Parliament back in 2024 with the main aim of establishing measures to target childhood obesity.

The new less healthy food advertising restrictions impose a 9pm watershed for the advertising of LHF products on TV, as well as a blanket restriction on paid-for advertising of such products online. 

We have previously reported on the somewhat contentious 'brand advertising' exemption for these rules, which had caused concern among stakeholders and resulted in some back and forth between the Government and Committees of Advertising Practice (CAP) to iron out the position. This led to the Government implementing The Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025 which explicitly exempt brand advertising (i.e. the advertising of brands which could be associated with LHF products but which do not depict a specific LHF product in the advert) from the scope of the restrictions. 

Prior to the new rules coming into force, CAP published the outcome of their consultation on the implementation of the new advertising rules, which led to the Advertising Standards Authority (ASA) issuing its final guidance on how the rules should be applied and how they will be administered by the regulator through the UK advertising codes. 

While the ASA's final guidance is not a significant departure from the draft guidance we discussed in previous articles, it is worth reiterating the current position now that the new rules have entered into force, as the patchwork of regulations, consultations and guidance on this issue has caused some uncertainty around what the new rules mean and how they should be implemented in practice.  

To reiterate therefore, the guidance clarifies that the new rules prohibit the advertising of LHF products: 

• Between 5:30am and 9pm on TV (which includes live and on-demand content); and 
• Outright on paid-for online advertising. 

The final guidance confirms that the legal test for determining whether the content of an ad is covered by the new restrictions is whether an LHF product is "identifiable" (i.e. whether persons in the UK could reasonably be expected to identify the ad as being for that product). If an ad does not meet the "identifiability test", then it will not fall within the scope of these rules. 

The ASA guidance also provides additional context around: 

• Determining the products in scope – LHF products are products that (1) fall within one of the 13 categories set out in the Schedule of the 2024 Regulations and (2) are classified as high in fat, salt or sugar products ("HFSS Products") according to the Department of Health and Social Care's 2011 Nutrient profiling technical guidance. 
• Nature of the advertiser – The new rules mainly apply to businesses directly involved in the supply of LHF products (which can include delivery services). Where an ad features generic imagery of food or drink products (e.g. a car manufacturer portraying characters eating LHF products as part of the ad's narrative), this is highly unlikely to amount to an ad for an identifiable LHF product (as that is not the product being promoted in the ad).  
• Media and scope – Notably, the restriction on paid-for online advertising does not apply to advertisers' own marketing communications via their websites, social media channels or other non-paid-for space online. The key factor which would bring the ad within the scope of the rules is where there has been payment for the placement of an ad (which can include a product listing on retail sites and influencer marketing).  

The guidance confirms that the following exemptions will apply (all of which were discussed in the previous draft guidance): 

• SMEs – Food and drink SMEs with fewer than 250 employees (including international and franchisee staff numbers) are exempt from the new rules. Businesses wanting to benefit from this exemption are advised to keep evidence of their eligibility available in the event of any ASA investigation into their compliance with the rules. It is worth noting that SMEs must still comply with the existing rules on the advertising of HFSS Products. 
• Out-of-scope media – Ads on media other than the TV and paid-for online context (e.g. radio or print media, including out-of-home advertising) will not fall within the scope of these restrictions. 
• Brand advertisements – Ads that promote a brand (including the brand of a range of products) but do not depict a specific LHF product (and notably, do not satisfy the identifiability test above, even without the depiction of a less healthy product) will not be covered by the rules. 

The guidance emphasises that the ASA will assess ads on a case-by-case basis. Where the new advertising rules on LHF products do not apply, then the existing rules around advertising of HFSS Products may apply depending on the context. The ASA's guidance on HFSS Products has also been updated to bring it in line with the LHF advertising rules, so it is likely that suppliers of LHF products will need to consider both sets of rules in tandem in order to remain compliant in their advertising.  

Next steps 

After nearly two years of discussions (and controversy), the new advertising rules on LHF products are finally here to stay. It will be interesting to see how the ASA applies the new restrictions and how strict it is on enforcement (particularly when it comes to fringe cases, such as where an ad may be considered as identifying a LHF product where this is not directly depicted in the ad). 

The natural takeaway for advertisers seems to be not to depict specific LHF products (including product ranges) in their advertising, focusing rather on promoting their brand, and being as generic as possible when it comes to LHF products.  

If you would like more information on compliance with the new advertising restrictions and how best to equip your business with an ad-compliant strategy, please get in touch with our Advertising and Marketing team. 

 Authors:

Tina Kondouli, Associate
tina.kondouli@mishcon.com  

Stuart Lester, Partner
stuart.lester@mishcon.com