As we reported in the last edition of newsBITE, the Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025 (Brand Advertising Exemption Regulations) were published in September 2025.
The Brand Advertising Exemption Regulations came into force on 31 October 2025. They provide that “brand” advertising that does not identify a specific, less healthy product, is outside the scope of highly anticipated restrictions, which will come into force in January 2026, under the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (Advertising Regulations).
The Advertising Regulations will impose new restrictions banning ads for “identifiable” food and drinks that are high in fat, salt or sugar (HFSS) from being shown on Office of Communication (Ofcom)-regulated TV services and Ofcom-regulated on-demand programme services between 5:30 a.m. and 9 p.m. in the UK, or at any time in online paid-for advertising. The aim of the Advertising Regulations is to address the impact of advertising in the promotion of less healthy products to children, but there are concerns from industry on how the restrictions will affect their ability to promote products, and what will count as “pure” brand advertising.
While we wait for the results of a recent Advertising Standards Authority (ASA) consultation on implementation of the restrictions, it is notable that the Brand Advertising Exemption Regulations came before the House of Lords Secondary Legislation Scrutiny Committee (the “Committee”), whose findings were published in a report on 16 October 2025, (Committee Report). The role of the Committee is to examine the policy merits of statutory instruments and other types of secondary legislation that are subject to parliamentary procedure.
The Committee Report notes that the Brand Advertising Exemption Regulations provide for exceptions from the restrictions, including where a company or brand name shares its name with a specific less healthy product, advertisements for that company or brand name would not be prohibited, provided that the advertisement does not depict a specific, less healthy product. However, the exception will only apply to companies or brands that held that brand name prior to 16 July 2025. The Committee expressed that the use of this exception should be “monitored closely” to avoid a “potential loophole”. This may be a particular area of concern for enforcement officers.
The Committee Report also notes that the Brand Advertising Exemption Regulations are intended to provide the necessary clarity so that the ASA can deliver implementation guidance. As the ASA consultation has now closed, the Committee noted that the House of Lords may wish to seek an update from the ASA on the development of its final guidance, including a specific publication date.
Finally, the Committee noted that the success of this policy would rest “on its ability to reduce children’s exposure to the advertising of less healthy food and drink products”. A review of the policy’s impact on childhood obesity will be carried out before October 2030, but the Committee indicated that it may seek a commitment from government for data to be published more frequently.
For advice on the application of the “pure brand advertising” exemption, please get in touch with us.
