Who: The Advertising Standards Authority (ASA) and The Office of Communications (Ofcom)
Where: United Kingdom
When: 21 February 2023
Law stated as at: 6 March 2023
What happened:
Ofcom launched a consultation on its proposed approach to implementing new restrictions due to come into force in October 2025 on advertising for “less healthy” food and drink products that are high in fat, salt or sugar (HFSS).
(For more information, please also read our insight.)
Why this matters:
The consultation confirmed that:
- Enforcement via the ASA
The ASA will be the regulator primarily responsible for enforcement, including for material online. While this was anticipated, it marked a significant expansion of Ofcom’s relationship with the ASA into the online world (rather than broadcast). It also means that should the ASA refer a company for prosecution it will be a referral to Ofcom rather than to Trading Standards under the HFSS rules, which, in addition to different sanctions, will also entail a different process for enforcement. - Existing rules are not displaced
Ofcom’s view is that the new rules do not displace the existing rules. While this has previously been assumed to be the case, this is the first time that it has been confirmed by the regulator. This means that most companies will have to comply with both the existing targeting restrictions and the new restrictions. Additionally, it is important to note that where companies that can rely on exemptions, such as the small and medium-sized enterprise (SME) exemption, will still have to comply with the existing rules as Ofcom is not currently intending to extend the SME exemption to the existing rules.
The consultation closed on 21 April 2023. As a reminder, there was also a separate consultation, which closed on 31 March 2023, that government is undertaking in regards to products in scope of the advertising restrictions, food and drink SMEs that would be considered under the exemptions; and services that are connected to regulated radio for the radio service exemptions.
