HomeInsightsGovernment publishes response to consultation on advertising restrictions for products high in fat, salt and sugar (HFSS) confirming a 9pm TV watershed

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The document summarises the government response to both the 2019 consultation proposing further advertising restrictions for HFSS products and the 2020 consultation, which proposed a 9pm TV watershed for HFSS advertising and a total restriction on the online advertising for such products.

The Government says that the 9pm TV watershed proposal aligned with the 2019 consultation feedback, in which 79% of respondents supported it. The rationale for the total ban on online advertising of HFSS products online was threefold:

  • future-proofing the policy against changes in children’s media habits which are shifting online;
  • accounting for a lack of transparency and independent data for adverts served online; and
  • addressing concerns with the efficacy of online controls that seek to target HFSS adverts away from children.

Consultation responses showed strong support for a proposal to introduce a total online HFSS advertising restriction, with 74% in agreement.

The Government has decided that implementing further HFSS advertising restrictions on TV and online is the best way to meet the objective of reducing children’s exposure to HFSS advertising. This follows consideration of a range of alternatives, including enhanced industry-led measures. The policy that will apply UK wide, is:

  • introduce, simultaneously at the end of 2022, a 9pm TV watershed for HFSS products and a restriction of paid-for HFSS advertising online;
  • all on-demand programme services (ODPS) under the jurisdiction of the UK, and therefore regulated by Ofcom, will be included in the TV watershed for HFSS advertising; and
  • non-UK regulated ODPS will be included in the restriction of paid-for HFSS advertising online because they are outside UK jurisdiction.

The Government has revised the products in scope following consultation feedback, reducing it to those categories that are of most concern to childhood obesity, which are listed in Annex 1 of the response. To determine whether a product is HFSS, the 2004 to 2005 Nutrient Profile Model (NPM) will then be used.

The Government has considered feedback from a range of stakeholders, and has concluded that the online restrictions should be limited to paid-for advertising. Paid-for space online is any space where a third party has had to pay the owner to display content and is outlined in more detail in Annex 3.

The restriction will not, therefore, apply to “owned media”. This is to ensure that brands can continue to talk about their products in the spaces they own, so that adults are not prevented from visiting owned media online spaces and so that important factual information can be shared, such as allergen ingredients, on a brand’s own online spaces. For owned media the brand exerts full editorial control and ownership over content, such as a blog, website or social media channels.

The policy includes several exemptions to balance health benefits and impact on business:

  • brand advertising (online and 9pm TV watershed): provided there are no identifiable HFSS products in the adverts, brands can continue to advertise; this is to ensure that brands are not pigeonholed as synonymous with HFSS products and have the freedom to reformulate and move towards offering healthier products;
  • small and medium enterprises (SMEs) (online and 9pm TV watershed): businesses with 249 employees or fewer that pay to advertise HFSS products will be exempt;
  • audio (online): as the impact and levels of child exposure to HFSS advertising on audio only media (podcasts, online only radio) remains unclear, these restrictions will not apply to online audio only content where it is streamed;
  • broadcast radio: as highlighted in the 2019 consultation the Government did not propose further restrictions on other forms of advertising regulated by the Advertising Standards Authority’s (ASA) BCAP (radio) and CAP Codes (including print, outdoors, direct marketing and cinema);
  • business to business (online only): businesses can continue to promote their products or services to other businesses in order to prevent unintended consequences of impeding business activity where commerce is not with the purpose of encouraging children’s consumption of HFSS food or drink; and
  • transactional content (online only): to ensure that the buying and selling of products is allowed to continue and that consumers have enough information at the point of sale/purchase.

As for liability and enforcement, the liable parties for HFSS advertising breaches will be the same as for other breaches of the advertising codes:

  • broadcasters and ODPS under UK jurisdiction (including video-on-demand) will be liable for breaches of the HFSS TV watershed;
  • advertisers will be liable for breaches of the paid-for online HFSS restriction; and
  • for non-UK ODPS, the advertiser will be liable for breaches of the online HFSS restriction on these platforms.

As for online platforms, the Government consulted on whether they should have responsibility for ads that breach an online restriction, alongside the responsibility of advertisers. Following consultation feedback, the Government has decided to entrust the regulators to determine what constitutes an advertiser. However, the Government says that it will review the regulatory framework for services providing online advertising content through the Online Advertising Programme which it intends to consult on as soon as possible this year. As part of this work, the Government will consider regulation of the content and placement of advertising online, duties on service providers, and to what extent the current regulatory regime is equipped and funded to tackle the challenges posed by online advertising. It intends to legislate on the conclusions of the Online Advertising Programme, subject to consultation and Parliamentary time.

As for enforcement, Ofcom will be the statutory regulator for HFSS advertising. The confirmed regulatory authority, which is expected to be the ASA, will then be able to appoint a day-to-day regulator to carry out frontline regulation.

The Government will implement restrictions for TV and online at the same time and intends to do so at the end of 2022. Government will use the upcoming Health and Care Bill to legislate for these changes. This Bill will enter Parliament in this parliamentary session. The categories of food and drink in scope will be taken forward in secondary legislation. After publishing the consultation response, the Government intends to conduct a short enforcement consultation on these regulations.

The Government will review and evaluate the policy five years post implementation. To read the response in full, click here.