Does this affect all restaurants?
No. The Government has taken the same approach it used for calorie labelling legislation introduced in 2022: the rules apply only to businesses with more than 250 employees. However, as with calorie labelling, franchisees employing fewer than 250 staff may still need to comply if they are part of a larger overall brand that exceeds the threshold.
What exactly is being banned?
From 5 January, restaurants - and any other food businesses including food manufacturers and supermarkets - will no longer be allowed to run paid-for online advertising promoting products classified as HFSS - foods high in fat, salt or sugar. Organic content, such as unpaid social media posts or content on a company’s own website, is unaffected. The restrictions apply only where money changes hands, such as paying a platform like Instagram to boost a post or placing a paid advert on another website.
What’s the political backdrop to all this?
Intervention in this area has been on the cards for some time, but it is fair to say the implementation of the legislation - an update to the 2003 Communications Act - has been contentious and, at times, messy. Advertisers and food businesses have raised concerns about what they see as onerous and poorly defined restrictions, arguing that the rules risk having disproportionate commercial consequences for brands whose menus or ranges include HFSS products. At the same time, those on the other side of the debate - often referred to as the public health lobby - argue the legislation has been watered down in order to protect large corporate interests and in particular very large companies that are focused on HFSS products. The result has been a prolonged period of uncertainty. “There is a lot of discussion about this among my clients in both the food sector and the advertising industry,” says Daniel Fletcher, senior associate at Forbes Solicitors. “Partly that’s because the guidance is difficult to interpret. There have been multiple consultations and successive updates, which has contributed to ongoing confusion about what is and isn’t allowed.”
Who decides whether a product is HFSS?
The Government is using the same framework already applied to the TV watershed, which restricts HFSS food and drink advertising on TV and on-demand services between 5.30am and 9.00pm. Developed by the Department of Health and Social Care, the Nutrient Profiling Model (NPM) scores foods based on their nutritional content per 100g. Products gain points for energy, saturated fat, sugar and salt, and lose points for beneficial elements such as fruit, vegetables, nuts, fibre and protein. The model can produce some surprising outcomes. For example, a vegetable-based stir-fry sold by a well-known Asian restaurant group is classed as HFSS, while a McDonald’s cheeseburger is not.
What about more general brand advertising?
This is one of the most contested and grey areas of the legislation. A distinction is drawn between advertising an identifiable product and advertising a brand. When the legislation was first proposed, a ban on brand advertising was ruled out. Since then, the Government has shifted its position. Early drafts suggested that brands closely associated with HFSS products - such as fried chicken or ice cream chains - could be prevented from running any online advertising at all. More recent guidance has clarified the position. “Brand advertising appears to be permitted as long as no identifiable HFSS products are featured. In practice, this means a burger chain could promote provenance, sustainability or family dining - but would need to take care that food shown is not clearly recognisable as HFSS, so it wasn’t considered an advert for said product,” says George McLellan, a partner at Sharpe Pritchard LLP.
What about influencer marketing?
Previously something of a wild west, influencer marketing is now firmly in scope of the legislation. Brands will no longer be able to pay influencers to promote identifiable HFSS products. The position on broader brand promotion via influencers is less clear but is likely to mirror the rules on brand advertising more generally. In short, it may be acceptable provided HFSS products are not prominently featured. The latest guidance also appears to prohibit businesses from comping influences in order to have certain products promoted, although it’s difficult to see how this could be monitored.
What about enforcement. Who is responsible?
Enforcement will fall to the Advertising Standards Authority (ASA). This has proved controversial, because the ASA is a trade body rather than a statutory regulator. Initially, enforcement is likely to focus on ‘naming and shaming’, reputational pressure and persuading platforms to remove non-compliant ads. In more serious cases, the ASA could work with Ofcom and trading standards, potentially leading to tougher sanctions and even criminal convictions.
Whose responsibility is it to determine HFSS status?
As with calorie labelling, the system is effectively self-policed. Responsibility lies with businesses to calculate whether their products are HFSS. In theory, local authorities can test nutritional claims, but in practice this rarely if ever happens. On top of this, it’s even more complex with the NPM. Unlike calorie testing, there is no single scientific test that captures energy, saturated fat, sugar and salt together. Instead, calculations are based on ingredients and cooking methods with businesses required to follow complex technical guidance. As with calorie labelling, the Government is relying on the sector to comply in good faith.