CAP reviews draft guidance on scope of HFSS ad ban

What’s the background? 

Ofcom is the statutory regulator for the HFSS online advertising ban and has appointed the Advertising Standards Authority (ASA) as its frontline advertising co-regulator. On behalf of the ASA, CAP consulted on rules and guidance for advertisers to support the implementation of the online ban on ads for ‘less healthy food and drink' (often referred to as LHF - a subset of products high in fat, salt or sugar). IAB UK responded to this consultation in February 2024.  
 

What’s the update?  

In an update issued today, CAP states: “Consultation invites views from interested parties in order that the consulting regulator can consider as broad a range of responses as possible to its original proposals. In this case, the consultation process has caused us to rethink and potentially revise aspects of the guidance we consulted on.”      

As a result of the consultation, CAP (supported by the ASA and Ofcom) “now considers that some parts of the proposed guidance are likely to require revision, particularly parts relating to brand advertising (used here to mean advertising by brands that does not explicitly refer to or feature products).” 

The draft guidance covered how the scope of the online ban affects brand advertising. Following its consultation, CAP has reviewed the draft, reflecting the fact that the law doesn’t refer to brand advertising. The scope of the ban is based on whether an ad meets the legal test of being for an identifiable LHF product or products. 

Please read the full update here.  

What does it mean for advertisers?  

CAP’s update says: “… for advertisers, our revised guidance is likely to clarify that – even if your ad does not explicitly refer to or feature an LHF product – it may still be restricted under law, where persons in the UK could reasonably be expected to be able to identify your ad as being for an LHF product or LHF products. Whether or not your ad actually would be restricted will be a question of fact and judgment in each case, which no guidance can conclusively determine – as is the case with most aspects of advertising regulation. You should therefore consider carefully the specific content and media placement of your individual ads, and take appropriate account of the wider context, including your overall product and service offering, to assess whether your ad is likely to meet the test for the restrictions to apply”.  This means that the ASA will need to take a case-by-case approach to considering potential breaches of the rules in respect of ads that don’t explicitly refer to or feature products to determine whether or not they are subject to the ban. In short, it makes the ban less clear-cut and more complex to navigate for advertisers and the industry as a whole than was originally envisaged and understood, based on clear statements made by the Government and Ministers about the scope and application of the ban in relation to brand advertising. 

What happens next?  

CAP is finalising a revised version of its guidance for the industry for consultation shortly, which it says will “better support affected advertisers and media to help them make informed judgments about whether an ad would be likely to be restricted”. However, it cautions that “it will not be possible for guidance to state in the abstract - and in the absence of a full assessment of the specific content and context of an individual ad - whether ads from particular brands will fall definitively within or outside scope of the restrictions.” Following this further consultation, CAP is aiming to publish the final guidance in the spring, barring any unforeseen developments. 

What does IAB UK think?  

Commenting on the development, Christie Dennehy-Neil, Head of Policy & Regulatory Affairs at IAB UK, says: “With the online ad ban for less healthy food and drink coming into force this year, the industry needs urgent clarity about how the ban will work in practice. It has always been the intention that brand advertising would be out of scope of the ban, as the government confirmed repeatedly when pressed by industry to reword the legislation for the avoidance of doubt.  Their failure to do so means that ASA and CAP are now faced with the challenging task of interpreting laws that are poorly drafted to give proper effect to the policy intention.  We will be continuing to represent our members by feeding into the consultation on the revised guidance where appropriate and supporting the regulator to ensure that this ban is as workable as possible.”   

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