Progress update on the ASA's HFSS guidance - March 2025

The journey towards the Committee of Advertising Practice's (CAP) guidance on how advertising restrictions for less healthy food and drink products (HFSS) will be applied has been slow and there have been many delays both expected and unexpected.

The latest development is an unprecedented acknowledgment by CAP that the original draft guidance was ”unlikely to be consistent with the relevant statutory test”, followed by a highly unusual second consultation – which in essence asks if the authors have got the law right this time.  

The law itself was passed in the form of the Health and Care Act 2022 and the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024, and prevents ads for “identifiable” HFSS products on Ofcom-regulated TV services and on-demand programme services between 5:30am and 9:00pm, and those in paid-for space in online media at any time. Ofcom appointed the Advertising Standards Authority (ASA) as the advertising co-regulator, together with CAP, who together have been instrumental in consulting on the rules and producing guidance for implementing new restrictions on HFSS advertisements.

So, what has changed and what does it mean for advertisers?

Previous consultation and the announcement

The initial consultation process, carried out by CAP and BCAP on behalf of the ASA and which concluded in February 2024, involved a diverse range of stakeholders including public health organisations, industry representatives, and consumer groups.

The feedback received from some of the stakeholders involved highlighted concerns and suggestions, particularly regarding brand advertising. Specifically, the feedback pointed out the need for clearer guidelines on ads that do not explicitly feature HFSS products but could still be identified as promoting them. It was considered that the approach proposed in the draft guidance had the effect of limiting the scope of how the legislation, and therefore the restrictions, would be applied, giving rise to loopholes which would undermine the Government’s overarching ambition to tackle child obesity.

Legal advice obtained indicated that some parts of the original guidance might not align with statutory requirements. This prompted a re-evaluation and revision of the proposed guidance to ensure that it is both clear and legally sound.

New consultation

On 18 February 2025, the ASA launched a new consultation to refine its HFSS advertising guidance. This new consultation has been launched to address significant challenges identified in the original proposal, particularly concerning ads that do not explicitly feature HFSS products. The consultation aims to “clarify” how the HFSS advertising rules apply to brand advertising and ensure the guidance aligns with statutory requirements.

In practice what this means is that the previously understood clear distinction between adverts for HFSS products (which are not permitted) and brand adverts (which are permitted) has been replaced by a new test, known as the "identifiability test".  The “identifiability test” has been introduced to help determine whether an ad is considered to be promoting specific HFSS products. This test ensures that even if these products are not actually shown, the ad's overall context and content will be considered.  

So how is the “identifiability test” different from the previous position?

• The new test will firstly ask what the average consumer would think the ad is for, ie what is being advertised? Is it HFSS food, or perhaps hospitality, or a business or its CSR?
• The guidance makes it clear this test is objective, ie the advertiser’s intention is not relevant, as the question is what the average consumer would think. If the answer is that consumers would think the ad is for HFSS food, then the product rules apply in full.
• Even if the ad is not for food, the restrictions could still apply if the reasonable consumer would think the ad is for an identifiable HFSS product. Various factors will be considered in determining if this is the case, including:
  • Whether the brand is associated with less healthy food in consumers’ minds and if so, does the brand currently sell predominantly HFSS food and drink?
  • Are there images or distinctive foods that a consumer would recognise as a specific product or as generic images of categories of HFSS foods and drinks that are caught by the restrictions?

Stakeholders have been invited to provide feedback on the revised proposals until 18 March 2025. 

What’s next?

The consultation asks if this new guidance reflects the law. The answers received will no doubt reflect a range of views – precisely because this is new law and its interpretation is unclear. What the law does tell us is that the restrictions apply to adverts for “identifiable” HFSS products and that the test for this is what persons in the UK could “reasonably be expected to be able to identify”. So, it is clear that this could be wider than just a product ad. However, there is compelling evidence to show that the Government did intend this to mean brand adverts were out of scope and that the law itself does not say the average consumer test applies.

Regardless, the current law says that new restrictions will come into effect from October 2025. Unless there is a further delay or change in the law, these points will likely be finally resolved through ASA enforcement in the autumn and beyond.

Provided there are no unforeseen developments, it is anticipated that the final advertising guidance will be published this spring.

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