The first set of ASA rulings on the new restrictions and an online ban for paid advertisement of less healthy foods (LHFs) were published today, after coming into force on 5 January 2026, which means we have the first chance to understand what approach the ASA is going to take to key issues. So what did we learn?
Learnings on products in scope
LHFs are products that fall within one of the specific food categories in a schedule to the regulations, and exceed a particular score under the Food Standard Agency’s 2004/2005 nutrient profiling model (NPM). Their scope is similar, with key exemptions, to the high in fat, sugar or salt (HFSS) foods whose promotion is also regulated. We note that the NPM is currently under consultation to be updated to the 2018 NPM - see our recent article on this here.
This means that the test for a less healthy food is twofold: firstly, it must fall within a category of the regulations of less healthy foods; and it must also be high in fat, salt, or sugar according to the applicable nutrient profile model.
The ASA ruling on German Doner Kebab, which wasn't upheld, is an interesting case study in how these apply in practice.
An Instagram post by influencer John Fisher (known to many as Big John) featured him promoting menu items at a new German Doner Kebab outlet. In the ad, he promoted four specific menu items, and a shot also featured a can of Diet Coke alongside the food.
Although the ASA ruled that a consumer would be expected to identify that the ad was for those specified items, German Doner Kebab was able to demonstrate that the food items shown in the ad weren’t classified as LHFs under the government’s nutrient profiling model, so the ad didn’t break the rules.
German Doner Kebab stated that they’d restricted Mr Fisher to choosing only foods that weren’t LHFs for the ad, mentioned in the ruling presumably as an illustration of good due diligence on this point.
Learnings on the identifiability test
If a product is in scope and no exemptions apply, whether the restrictions apply will hinge on if an average consumer could identify the ad as being for an LHF product/s.
The test to be applied is: is the ad for an identifiable LHF product?
An ad will meet the test if it shows, directly refers to, or gives the consumer enough clues to identify a specific LHF product. The content and context of the ad both impact how an average consumer understands what the ad is for.
The ASA rulings concentrate on whether a consumer could be reasonably expected to identify whether the ads were for an LHF. The ASA has gone out of its way to provide guidance in the rulings about how it’ll apply this test in different contexts including, notably, for influencer marketing.
In the Lidl Northern Ireland ruling, which was upheld, the ASA made an interesting contrast between adverts which were brought to the attention of the viewer by the influencer as compared to shots of other products which were not mentioned in the voiceover and not front and centre in the advert.
The ruling concerned an Instagram post for Lidl Northern Ireland by influencer Emma Kearney which featured two bakery items, both shown prominently in the ad and mentioned verbally. One was classified as a less healthy product and one was not. Although Lidl stated that the ad wasn’t intended to be for those products specifically, the prominence given to them led the ASA to rule that a consumer would reasonably be expected to identify that the ad was for the bakery item in scope of the restrictions, which meant that there was a breach of the new rule.
In contrast a shot of a third bakery item, not mentioned in voiceover and to the side of the frame, was considered to be “incidental and fleeting”, and the ad was therefore not seen as promoting this product. So although there was a breach, it wasn’t because of the images of this less healthy product.
As one of the two featured bakery items was an LHF, the ad therefore was not allowed under the rules. This illustrates how the ASA will look directly at the prominence given to the LHFs when considering what the average consumer would think the ad was for.
In the German Donner Kebab ruling the ASA also proactively considered whether a consumer could reasonably be expected to identify whether the ad was also for Diet Coke (despite Diet Coke not being an LHF). The ASA concluded that as the can was in the edge of the frame, not mentioned by name, and not the focus of any specific part of the ad, this type of imagery didn’t constitute “identifiability” for the purpose of the restrictions.
Learnings on the adverts for experiences?
The ASA’s decision regarding the On The Beach TV ad promoting free airport lounge access makes some interesting points about adverts which aren’t for food but rather the experience which nonetheless have images of food.
The issue was that the ad included a scene of a boy approaching a buffet and taking a chocolate ring doughnut.
Although ASA guidance states that “advertisements solely by or on behalf of businesses not involved directly in the supply of food or drink are highly unlikely to be subject to the rules”, the ASA noted that the underpinning legislation is not specific to food and drink manufacturers, and therefore that the TV ad didn’t fall outside of the scope of the code.
The ASA considered that viewers would see the ad as depicting the doughnut as a generic example of what was available in the lounge, rather than being an ad for the doughnut itself, so the ad didn’t break the rules.
It’s important for advertisers to keep in mind that the ASA may still look to restrict their advertising, even if they’re not a food or drink supplier.
Any learnings on the brand exemption?
No rulings considering the hotly contested brand exemption have so far been published, although it was raised in On The Beach’s response to the ASA. This remains an area where there’s some uncertainty about how the rules will apply in practice.
This brand exemption allows companies to promote their overall corporate identity or range of products, even if they produce LHFs, provided the advertisement doesn't specifically depict a "less healthy" product.
“Depict” means to “represent by way of name, text, imagery, logo, audio cue, jingle, brand character or other branding technique or combination of branding techniques”.
Again, context will be key in that the ASA will assess the overall impression of the ad to determine if it’s a permissible "brand advertisement" or a prohibited product advertisement on a case by case basis.
Summary
These rulings indicate the ASA is very actively enforcing the new restrictions, but at the same time taking a proactive approach to providing additional explanations of their decisions to help guide industry. They’ve also indicated their intention to publish further rulings in the coming months.
The Mills & Reeve advertising team will be monitoring these developments closely.
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