A dispute over whether brand advertising will be covered by new legislation has caused the government to rewrite long-awaited rules aimed at curbing childhood obesity. By Nick Hughes.
Health campaigners have reacted with dismay to news that the government will delay a long-awaited ban on advertising unhealthy foods until 2026.
It follows the threat of legal challenges from the food industry over details of the regulations which place a 9pm watershed restriction on advertising of unhealthy food and drink products on broadcast TV, and a 24-hour restriction on paid-for advertising online.
Specifically, companies have claimed that brand adverts, as distinct from adverts featuring specific products, could be captured by the rules as currently written despite the government insisting this was not its intention. Should that prove to be the case, it would mean that a well-known fast food brand, for example, could not advertise before the 9pm watershed even in cases where no unhealthy products are identifiable.
The law itself makes no reference to brand advertising. It was due to be introduced in October 2025 but will now be delayed until January 2026. Ofcom is the statutory regulator of the new restrictions and has appointed the Advertising Standards Authority (ASA) to help enforce the rules, which will apply to England, Wales, Scotland and Northern Ireland.
Ministers have decided to rewrite the legislation to provide legal clarity on brand advertising rather than rely on guidance developed by the ASA, which has been a source of concern among businesses. In a statement to Parliament health minister Ashley Dalton said: “We have listened carefully to the concerns that industry stakeholders have raised around the Advertising Standards Authority’s implementation guidance. We are aware that many brands have prepared advertising campaigns in good faith ahead of the restrictions’ current coming into force date of October 1st 2025 and remain concerned about how these adverts will be affected by the ASA’s approach to implementation.
“We want to support economic growth and ensure that industry has confidence to invest in advertising but, at the same time, protect children from advertising of less healthy products. To that end, I am announcing today that the government intends to make and lay a statutory instrument to explicitly exempt ‘brand advertising’ from the restrictions.”
Campaigners believe the current legislation is clear and have suggested the debate over brand advertising is part of a coordinated industry attempt to delay and water down the rules. “The delay is one thing, but our main concern is the reason for it – to amend the legislation to more explicitly exclude brand advertising,” said Barbara Crowther, Children’s Food Campaign manager at Sustain.
“We do not agree that inserting a new clause to the legislation is warranted,” Crowther added. “The regulations approved already in Parliament are already very clear in focusing on individual products within an explicit set of food and drinks categories, and only restrict advertising of products high in fat, salt and/or sugar.”
Crowther expressed concern that food and drink advertisers would seek to exploit any brand loophole and called on businesses to adopt both the letter and the spirit of the law, and focus their advertising on the healthiest options.
Dalton noted in her statement that advertisers and broadcasters have committed to comply with the restrictions as though they would still come into force from October.
Dither and delay
The rules banning unhealthy food and drink advertising have already been subject to numerous consultations and delays having first been announced in the government’s obesity strategy back in July 2020.
The restrictions cover products sold by retailers, manufacturers and in the out of home sector. The product needs to score four or above on the government’s nutrient profiling technical guidance and also fall within one of a number of product categories identified as being of most concern for childhood obesity. These include soft drinks, savoury snacks, pizza and fast food products like burgers and fried chicken.
The government has said 7.2 billion calories per year are expected to be removed from UK children’s diets as a result of the measures, preventing an estimated 20,000 cases of childhood obesity.
A study that featured in the government’s impact assessment estimated that 6.4% of UK childhood obesity and 5% of overweight is attributable to TV advertising of products high in fat, sugar and salt.
The delay has sparked concern over how ambitious and interventionist the Labour government is prepared to be in its forthcoming food strategy. “Today’s announcement also raises serious questions about whether this government will be stronger than the last in standing up to commercial food and advertising industry pressure in protecting children’s health. We had hoped for more,” said Crowther.
Last week, IGD and Defra hosted a series of workshops where stakeholders were able to hear about and feed into food strategy discussions.
