Who: The Advertising Standards Authority (ASA), the Committee of Advertising Practice (CAP) and the UK government
Where: United Kingdom
When: 7 April 2025
Law stated as at: 24 April 2025
What happened:
TV and online advertising restrictions for certain identifiable less healthy food or drink items are due to come into force UK-wide on 1 October under the Communications Act 2003, as amended by the Health and Care Act 2022 (CA).
The CA only restricts “advertisements for an identifiable less healthy food or drink product”. It states that: “…a product is “identifiable”, in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product”.
In its recent consultation, CAP set out its interpretation of “identifiability”, stating that, even where ads do not explicitly refer to or feature less healthy products, the restrictions may still apply. For example, an ad may be caught where it does not depict any particular “less healthy” product, but includes branding closely associated with such product.
Many brands and industry stakeholders challenged CAP’s interpretation of the “identifiability test”, arguing that the interpretation proposed does not correctly reflect the relevant provisions of the CA and contradicts statements made by ministers during the legislative process that “pure brand advertising” (that is, ads which do not feature an “identifiable” less healthy food or drink product) are exempt from the restrictions in the CA.
In welcome news for brands, the minister for public health, Ashley Dalton MP, issued a statement re-iterating that the government’s view is that pure brand advertising is not in scope of the incoming advertising restrictions on less healthy foods.
Why this matters:
Ministerial statements are potentially useful because they can be used by the courts to guide interpretation of the law where the law is unclear (in this instance in relation to the extent to which brand advertising should be exempt from the restrictions in the CA).
While this new statement was not issued during the parliamentary debate process (and is therefore arguably less persuasive from a pure legal perspective), it aligns with previous statements made by ministers during the legislative process (and therefore could bolster existing legal arguments). In addition, it puts significant political pressure on CAP and the ASA to align with the government position on brand advertising.
It also shows that the government understands the issues raised by advertisers so, if legal arguments do not succeed, it may mean that the government is more inclined to amend the law to make it clearer.
