ASA provides clarity on the brand exemption with further rulings on the advertising restrictions for less healthy foods

In April 2026, the Advertising Standards Authority (ASA) published its first round of rulings under the new rules on the advertising of “less healthy” food and drink products (LHF). It offered insight into how it will interpret key concepts, particularly the “identifiability test”. Please find more detail on these here.

We now have a second wave of rulings, this time demonstrating the ASA’s approach to applying the brand exemption. The ASA is taking a robust approach to enforcement with household names being assessed. So, what did we learn?

• Brand names: In the same ruling the ASA commented on the M&M’s brand name which, while it was a common part of the name for M&M’s products, was not the full name of a specific LHF, and therefore it did not of itself depict an LHF. This provides a helpful steer to those concerned with brand names that are also the names of specific LHFs as the brand exemption does not apply where a brand name is the name of a specific LHF.
• Realistic imagery: Several of the rulings demonstrate the ASA’s workings as to how the ASA will assess the “realistic imagery” element of the brand exemption. The brand exemption will not apply where a realistic image of food or drink in the ad is visually indistinguishable from a specific LHF (even if in fact it is not an image of the LHF). The rulings show that the ASA assesses very closely the images of compliant foods shown and where these may not be distinguishable from other menu items that are not compliant. These emphasise the importance of rigorously checking the similarities between compliant products and non-compliant products when advertising particularly with reference to images of those products on the website.
• Equity brand characters are not safe: The ASA used the ruling against Mars Wrigley’s M&M’s characters to highlight that brand characters that are personifications of a specific LHFs do not necessarily fall within the brand advertising exemption. The issue here was that the shape of the yellow M&M character featured in the ad was found to depict peanut M&M’s, which was a specific LHF.

Only two of the six rulings were upheld, demonstrating that brands can continue to successfully advertise using products on their menus whilst being compliant with the new restrictions. Of particular interest are the rulings on Burger King, Domino’s and Papa Johns, which show how these brands are able to advertise products that are not high in fat, sugar or salt (HFSS) using the brand exemption. The key takeaway here is that these brands have used products in their advertising that are not HFSS and most importantly, are distinguishable from LHF products on their menu.

Mills & Reeve’s advertising team will continue to monitor these developments closely.

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