Junk Food Advertising Restrictions: UK Government Launches Consultation on Brand Advertising Exemption

The UK government has launched a consultation on draft secondary legislation which introduces a brand advertisement exemption to The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (“Regulations”). 

The brand advertisement exemption intends to explicitly clarify that brand advertising does not fall within the scope of restrictions created by the Regulations (which inserted section 321A, 368FA and 368Z14 into the Communications Act 2023), provided that the advertisement does not identify specific less healthy food and drink products.

This would mean that brand advertising, which include “logos, livery, straplines, fonts, colour schemes, characters, audio cues and jingles” or focus on a company’s “non-product attributes […] such as their heritage, prestige, customer experience and corporate and social responsibility, as well as their healthier food or drink products” can be shown on paid-for advertising online, on-demand programmes or on TV between 5:30am and 9pm, as long as they do not depict specific less healthy food and drink products.

The change comes after the Advertising Standards Authority (“ASA”) published draft implementation guidance earlier this year with the view that, as the Regulations currently stand, the ASA “could not give certainty as to whether particular types of brand advertising would be in or out of scope of the restrictions.”

Consultation: Key Areas of Focus

Definitions

The draft legislation defines certain key concepts, including: 

• Brand Advertisement: Brand advertisement means any advertisement that promotes a brand without depicting a specific less healthy food or drink product. These are not within scope of the restrictions imposed by the Regulations.
• Depicting Less Healthy Food and Drink Products: The draft legislation takes a broad definition of “depict”, which encompasses “depictions by way of name, text, imagery, audio cue, jingle or other branding technique or combination of branding techniques”. In addition, the consultation document notes that such depictions will be considered both in isolation and in combination, indicating that advertisements which try to circumvent the restrictions by implying a specific product will likely still be caught under the Regulations.

Scope of Exemption

The exemption explicitly includes several circumstances:

• Range of Products: The exemption applies where an advertisement promotes the brand of a range of products, including such brands of less healthy food and drink products. For example, an advertisement promoting a brand relating to multiple crisp products in different flavours, would be permitted. However, products which are “distinguished only by pack sizes or packaging format, such as carton, tin, block or bag” will not constitute a range of products.
• Company Names that are/contain Product Names: Where a product name is depicted, but it is the same as or contained in the company’s name (and the company was established before 16 July 2025), such a depiction does not fall under the restrictions. For example, an advertisement for Coca Cola which mentions the phrase “Coca Cola” (but does not depict the product itself) will be permitted.

However, the exemption would not apply to advertisements with photographic images of less healthy food or drink products where the product could be one of several less healthy food or drink products (i.e. this will still be classed as a “specific” food or drink product). The consultation document gives the example of an unwrapped chocolate bar, which could be a specific milk chocolate bar or a specific orange milk chocolate bar, but will still fall under the scope of restrictions.

The consultation closes today (6 August 2025). The government will now consider, prepare its response to the consultation and finalise the secondary legislation.

Comment

The brand advertising exemption is the latest change to a series of advertising regulatory changes which target less healthy food or drink products as part of the UK government’s manifesto commitment to tackle the childhood obesity crisis – a commitment which is reiterated in the recent NHS 10-Year Health Plan. 

The exemption is a response to extensive consultation and is intended to ensure that brands are not automatically labelled as being less healthy and to encourage the industry to expand their offering to include healthier food and drink products.

The new advertising prohibitions are now expected to come into effect on 5 January 2026, a delay of three months from the original implementation date, in order to allow for further consultations and amendments. The delay was on the condition that key advertisers and broadcasters make a public commitment to implement the restrictions imposed by the Regulations on a voluntary basis from 1 October 2025, the original intended implementation date, onwards.

The government's pragmatic, and somewhat unusual, approach in delaying the implementation of the legislation in order to clarify and alleviate a key concern will no doubt be welcomed by impacted brands.

The Regulations may be amended following this consultation and the ASA is expected to publish updated implementation guidance in due course. In the meantime, organisations should stay engaged with the consultation and begin preparing for the wider impacts of anticipated secondary legislation. 

For advice on how the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 will impact you or your business, please contact Richard Hugo, Abbie McGregor or a member of Burges Salmon's Commercial & Technology team. 

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This article was written by Jenora Vaswani.