As part of the Government’s ambition to tackle childhood obesity, DHSC launched a consultation seeking feedback on the drafting of the brand advertising exemption. The exemption will provide legal clarification on the existing policy intention that brand advertising which does not identify a specific less healthy food or drink product is out of scope of the restrictions.
Introduction
The LGA stresses in its response to the consultation on Advertising restrictions for less healthy food or drink on TV and online: secondary legislation to provide brand advertising exemption - consultation document that greater precision, illustrative examples and guidance are essential to avoid exploitation of loopholes and ensure public health protections are upheld.
Questions on the draft regulations
Do you agree or disagree that the draft regulations make clear how brand advertisements will be treated by the advertising restrictions?
- Disagree, it is not clear
- Explanation:
While the regulations aim to clarify that brand advertisements are exempt from restrictions if they do not depict specific less healthy products, the criteria for what constitutes indirect depiction (e.g. through branding techniques) remain open to interpretation. This could lead to inconsistent application and enforcement.
Do you agree or disagree that the draft regulations provide a clear definition of a ‘brand advertisement’?
- Disagree, it is not clear
- Explanation:
The definition excludes advertisements that depict specific less healthy products or use photographic images of indistinguishable products. However, the boundaries between brand promotion and product promotion could still be blurred, especially in multimedia formats. It could also be blurred where a product has the same name as a brand, e.g. Mars.
Do you agree or disagree that the draft regulations provide a clear definition of ‘depict’?
- Disagree, it is not clear
- Explanation:
The term “depict” includes name, text, imagery, audio cues, jingles and other branding techniques. This broad scope is appropriate, but the lack of thresholds or examples makes it difficult to assess what would constitute a breach.
Do you agree or disagree that the draft regulations are clear on how the exemption will apply to a brand for a ‘range of products’?
- Disagree, it is not clear
- Explanation:
The definition of a “range of products” is vague. It is unclear how the exemption applies when a brand includes both healthy and less healthy products, and whether the presence of one less healthy item disqualifies the entire range.
Do you agree or disagree that the draft regulations provide a clear definition of a ‘specific’ less healthy food or drink product?
- Disagree, it is not clear
- Explanation:
The regulations rely on visual and textual cues to define specificity, but do not account for consumer recognition or marketing context. This could allow for circumvention through suggestive branding.
Do you agree or disagree that the draft regulations provide a clear definition of a ‘photographic image’ of a food or drink product?
- Disagree, it is not clear
- Explanation:
The distinction between packaging and the product itself is helpful, but the phrase “visually indistinguishable” is subjective and may be difficult to apply consistently across different media.
Do you agree or disagree that the draft regulations are clear that a company, franchise or other commercial entity whose name includes the full name of a specific less healthy food or drink product can still advertise its brand, as long as it was established before 16 July 2025?
- Agree, it is clear
Contact
Arian Nemati, Public Affairs and Campaigns Adviser
Email: [email protected]