ASA issues first rulings following UK ban on ‘junk food’ advertising
Following on from the introduction of ‘junk food’ advertising restrictions in January, the ASA has issued its first rulings under the new regulations – bringing clarity for those involved in the advertisement of HFSS products.
Contributors: Ellen Huison, Robyn Komasec, and Charlie Markillie.
What is changing?
On 5 January 2026, new rules came into force affecting the advertising of ‘less healthy foods’, including those high in fat, salt or sugar (HFSS). Alongside significantly restricting advertisements for ‘identifiable’ less healthy food and drink products on television and online, the regulations also include a television watershed for such adverts between 5.30am and 9.00pm (after 9.00pm, certain rules still apply), and a total ban on paid-for online advertising (which includes social media adverts and influencer marketing).
On 15 April 2026, the Advertising Standards Agency (ASA) issued its first rulings under the new regulations, providing useful guidance on what is deemed to fall in, and out, of the scope of the regulations, along with details of how the ‘identifiability test’ will be interpreted (with the ASA stating the ‘the devil is in the detail’ when it comes to determining whether rules have been broken). The rulings emphasise that both the content and the context of the advertisements are relevant to the determination.
How could the changes affect your business?
Two of the rulings looked at Instagram posts by influencers in relation to HFSS foods. One focused on an Instagram post by influencer ‘Big John’, promoting a range of new menu items by German Donner Kebab. In deciding not to uphold the ruling, the ASA concluded that the advertisement was not caught by the new regulations, as none of the foods shown met the nutritional requirements to be classed as less healthy foods. German Donner Kebab was quick to highlight that, when offering Big John a choice of menu items to be included within the advertisement, it only selected those which wouldn’t be considered less healthy foods – and therefore would not be subject to the new advertising restrictions.
Lidl, however, was not so lucky. A post by influencer Emma Kearney featuring two bakery products was found to be in breach of the rules because both items were shown prominently within the advertisement, and mentioned in the voiceover by the influencer. Although Lidl sought to argue that the advertisement was not intended to feature those two products specifically, the prominence of one of the bakery products (which was classified as a less healthy food, even though the other product was not) was considered to breach the regulations. On the other hand, a third bakery product which was not mentioned in the voiceover, but appeared briefly in the periphery of the advertisement, was considered ‘incidental and fleeting’, and the advertisement was therefore not considered to be promoting this product – providing vital clarification of how ‘promotion’ may be interpreted in practice.
The ASA further clarified this point in its assessment of a television advert by travel company On The Beach, which depicted a boy taking a doughnut from a buffet in an airport lounge. Although the doughnut may be identifiable as a less healthy food and HFSS product, the ASA did not find a breach because the food was only incidental to the advert – viewers are expected to see it as a generic representation of the benefits of airport lounge access, rather than the doughnut as a focus of the advertising.
What steps should you take to prepare?
If your business has 250 or more employees and you manufacture, sell or promote less healthy food or drink products, you should confirm which of your products are in-scope and review your advertising and marketing plans in light of this assessment. While the ASA guidance states that ‘advertisements solely by or on behalf of businesses not involved directly in the supply of food or drink are highly unlikely to be subject to the rules’, the On The Beach ruling demonstrates that businesses outside the food sector should still take care if their adverts feature less healthy products.
To determine whether your product is deemed ‘less healthy’, you will need to apply the ‘Nutrient Profiling Model’ and consider whether your product falls within one of the 13 categories listed in Schedule 1 of the Less Healthy Food Definitions Regulations. The schedule also sets out which products are exempt from these advertising restrictions – which could include food for special medical purposes, diet replacement products, or products for infants and young children (such as infant formula and baby food), for example.
It is also advisable to keep an eye out for any future rulings, as these will supplement the information and guidance already available – particularly in light of the ASA’s statement that, ‘By publishing rulings, we aim to give advertisers an even clearer sense of what’s allowed, supplementing our detailed guidance and advice already available to them’.
Key takeaways
1. Determine which of your products fall within the scope of the regulations.
2. Review your marketing plans.
3. Keep up-to-date with future rulings.
Please be advised that this is an update which we think may be of general interest to our wider client base. The insights are not intended to be exhaustive or targeted at specific sectors as such, and whilst we naturally take every care in putting our articles together, they should not be considered a substitute for obtaining proper legal advice on key issues which your business may face.