The highly anticipated ASA guidance on the advertising of less healthy food and drink products (Guidance) was published on 5 December 2025. This follows the ASA’s autumn 2025 consultation on the implementation of the less healthy food and drink advertising restrictions, and in particular how this would affect brand advertising.

Legal Context for the Guidance

From 5 January 2026, the Less Healthy Food Definitions and Exemptions Regulations 2024 will impose new restrictions banning ads for “identifiable” food and drinks that are high in fat, salt or sugar (HFSS) from being shown on Office of Communication (Ofcom)-regulated TV services, as well as Ofcom-regulated on-demand programme services between 5:30 a.m. and 9 p.m. in the UK, or at any time in online paid-for advertising.

The aim of these regulations is to address the impact of advertising in the promotion of less healthy products to children, but there are concerns from industry on how the restrictions will affect their ability to promote products, and what will count as “pure” brand advertising and be exempt from the restrictions.

Points to Note From the Guidance

The ASA will have regard to the Guidance when considering relevant advertisements, but the guidance does not limit the ASA’s (or Ofcom’s) discretion to decide whether advertising is compliant with the rules. Key highlights of the Guidance include:

Identifiable –The law states that a HFSS product is “identifiable”, if persons in the UK could reasonably be expected to be able to identify an advertisement as being for that product. The Guidance sets out what theASA’s approach to assessing individual advertisements under the identifiability test will be. In particular, the ASA will place weight on the content of the advertisement, and what the notional “average consumer” is likely to perceive the advert is for.

The Guidance notes that the ASA, when considering the prominence of less healthy products within an advertisement, will consider the following factors:

  • The positioning of product references (e.g. in the foreground or background)
  • The duration of the product’s appearance
  • How the viewer’s attention is drawn to the product

However, the “identifiability test” can still be met even if there is no direct reference to, or depiction of, a less healthy product. The Guidance states “for example, if the content includes a piece of branding that relates to a range of mostly less healthy products, or a combination of factors, like a company logo and imagery relating to a type of less health product it is known for supplying, it is likely that persons in the UK could reasonably be expected to identify the advertisement as being for a less healthy product”.

Brand advertising – The Guidance seeks to clarify the circumstances where the brand advertising exemption will not apply, including when an advertisement depicts a specific HFSS product. The Guidance defines “specific” for these purposes as a food or drink product that (i) is capable of being purchased and (ii) is differentiated from other products capable of being purchased (unless it’s only differentiated by pack size or packaging format).

Likely of particular interest to brands is the discussion on the circumstances when the brand advertising exemption will not apply, including when an advertisement promotes a brand that is also the name of a specific less healthy product. As an example, the Guidance provides that an advertisement including:   

  • The name of a brand that is exactly the same as the full name of a specific less healthy product will not fall under the brand advertising exemption
  • The name of a brand of a range that is exactly the same as the full name of a specific less healthy product will not fall under the brand advertising exemption
  • The name of a range that is a common part of the names of all product variants supplied under it, but is not the full name of a specific less healthy product (for instance, each product variant has a further named descriptor, like a flavour), will fall under the brand advertising exemption

By way of exceptions, the brand advertising exemption will still apply to advertisements for brands that name a specific less healthy product where the full name of that product:

  • Is the name or is included in the name of a company, franchise or other commercial entity, which was established before 16 July 2025, and which held that name immediately before that date (Exception 1)
  • Is the name of the brand of a range of products, where that brand was in use, as the brand of that range, for the purposes of marketing, advertising or retail sale immediately before 16 July 2025, and held that name immediately before 16 July 2025 (Exception 2)

Exception 2 might be particularly useful to businesses with existing trademarked brands used across a range of products.

Delivery services, aggregators and other intermediaries – The Guidance encourages care in relation to advertising by food and drink delivery services and aggregators as advertisements that depict or refer to a less healthy product available through a delivery service, aggregator or similar service risk falling within scope of the rules.

Online publishers, media owners and intermediaries – The ASA recognises that advertisers ordinarily pay online publishers, media owners and/or other intermediaries (for example, agencies) to place online advertisements on their behalf. In these circumstances, the advertiser will be held responsible for securing compliance. However, as the prohibition applies only to paid for advertising, the restriction will not apply to advertisers’ own marketing communications appearing on their own websites (for example, online groceries platforms, customer service sites, loyalty scheme portals or corporate and social responsibility sites), or in other non-paid-for space online under their control such as marketers’ own social media channels or apps where no payment for the placement of an advertisement is involved (subject to certain circumstances, which the Guidance details).

Influencer marketing – The Guidance states that where consideration is provided for an influencer to create content for publishing on the internet that depicts a specific less healthy product and to publish it on the influencer’s social media channels, the resulting content is likely to be prohibited (except for certain circumstances).

For advice on these developments, please get in touch with us.