Consultation outcome

Introducing further advertising restrictions on TV and online for products high in fat, salt or sugar: government response to consultation on secondary legislation

Updated 12 September 2024

Executive summary

The government has set out a bold ambition to raise the healthiest generation of children in our history, and this includes taking action to address the childhood obesity crisis. As part of this ambition the government is driving progress to implement restrictions on the advertising of less healthy products (originally referred to in the consultation as products high in fat, salt or sugar) on TV and online. This policy includes: 

• introducing a 9pm watershed for less healthy food and drink advertising on TV, including all on-demand programme services (ODPS) under the jurisdiction of the UK, and therefore regulated by Ofcom
• introducing a restriction on paid-for less healthy food and drink advertising online, including non-Ofcom regulated ODPS, at all times

Consultations were held in 2019 and 2020. The consultation response published in 2021 set out the decisions for the businesses, products and services that would be in scope of the restrictions. Following this, the policy was set out in primary legislation through the Health and Care Act 2022, which amended the Communications Act 2003. The restrictions will come into force on 1 October 2025.  

From December 2022 to March 2023, there was a further consultation on the draft regulations. This asked stakeholders and the public about:

• the clarity of the definitions set out in the draft regulations of the products, businesses and services in scope of the advertising restrictions
• specific exemptions around audio-only content

This document summarises the feedback that was received and sets out the government’s response.

As part of our response to the feedback, we are launching a targeted consultation on how the restrictions will apply to internet protocol television (IPTV) services which deliver television live over the internet. IPTV services have grown in prevalence since the initial passing of the primary legislation. These services are in different respects ‘broadcast’ and ‘online’ in their nature, and there is a lack of clarity at present about which regime they are covered by. Our proposal is set out in the consultation document and we are seeking views on the approach by 10 October 2024.

Introduction

Coming to government this year we have been clear at the core of our health mission that we must take bold action to address the childhood obesity crisis, which includes banning the advertising of junk food to children.

We make numerous decisions about the food we eat, and we are presented every day with encouragement and opportunity to eat less healthy foods. This can be through advertisements on TV^{[footnote 1]} and online^{[footnote 2]}, or through the range of foods available and promoted in shops. This influences the choices that we, and our children, make. Evidence shows that children’s exposure to advertisements for food or drink that are less healthy can affect what and when they eat.^{[footnote 3] [footnote 4] [footnote 5]} In the long term, this can shape children’s food preferences from a young age.^{[footnote 6] [footnote 7]}

We are committed to raising the healthiest generation of children ever, which is why government is acting now to introduce further restrictions on advertisements for less healthy food and drink.

Detailed evidence to support the introduction of these restrictions was set out in the 2019 consultation and impact assessment, the 2020 consultation, and the 2021 response to both these consultations.

While these measures have been subject to repeated delays in the past, this government will implement them without further delay. By publishing this response, we give stakeholders much needed certainty about the rules that will be in place from 1 October 2025.  

The country wants to see our broken NHS fixed. Our health mission makes clear that this requires a prevention revolution, tackling the drivers of preventable illness and reducing demand on health services. Obesity costs the NHS around £11.4 billion a year and is the second biggest preventable cause of cancer^{[footnote 8]}. More than one in 5 children in England are obese or overweight by the time they start primary school, and, as NHS Digital statistics show, this rises to more than one third by the time they leave. Around 63% of adults in the UK are above a healthy weight, and of these, half live with obesity. 

Obesity is associated with reduced life expectancy. Research shows it is a risk factor for chronic diseases including cardiovascular disease, type 2 diabetes, some types of cancer, respiratory disease^{[footnote 9]} and for liver disease^{[footnote 10]}. Children who are overweight or living with obesity are more likely to experience bullying, stigmatisation and low self-esteem.^{[footnote 11]} They are also more likely to go on to be obese as adults^{[footnote 12]}. 

Finally, the UK has stark health inequalities which obesity perpetuates. It cannot be right that life expectancy varies so widely across and within communities, leading to premature mortality. As part of our health mission, we have committed to tackling the social determinants of poor health. Obesity disproportionately affects people from lower socioeconomic backgrounds. As reported by the National Child Measurement Programme, children growing up in low-income households are more than twice as likely to be obese as those in higher income households. Furthermore, the same publication shows that children from minority ethnic backgrounds are more likely than children from white families to be overweight or living with obesity, and this inequality is increasing.  

While there is clear evidence that the advertising restrictions will help to address childhood obesity, we know that there is no single solution. As well as wider action on our health mission, we have committed to banning the sale of high-caffeine energy drinks to under-16s.

2022 consultation summary 

The 2022 consultation shared draft regulations to support the advertising measures included in the Communications Act 2003 (as amended by the Health and Care Act 2022) and provided further detail on the products, businesses and services in scope of the restrictions.  

The primary aim of the consultation was to gather views on the specific text in the draft regulations to ensure these are fit for purpose. This consultation was not seeking to revisit policy decisions that were made and detailed in the previous consultation response in 2021.  

To achieve this, we sought views on the following within the draft regulations: 

• whether it is clear how to determine whether a product is in scope of the advertising restrictions
• whether it is clear which businesses are within scope of the exemption for food and drink small and medium-sized enterprises (SMEs)
• whether the definition of ‘services connected to regulated radio services’ is clear for the purposes of the exemption for regulated radio
• the exemption for audio-only media online

Information and general comments about the wider policy or amendments to the Communications Act were out of scope of this consultation, and so may not be addressed in this response.  

Breakdown of responses to the 2022 consultation 

The 2022 consultation received 60 responses. Of these: 

• 50% were from businesses (30 in total, including trade associations, broadcasters, out of home businesses (such as takeaways, restaurants, and cafes), food and drink manufacturers, and retailers)
• 37% were from organisations (22 in total, including health non-governmental organisations (NGOs), charities, healthy policy advocacy groups, and professional bodies)
• 13% (8 in total) from individuals

Of the 60 responses to the consultation, 55 were submitted by email and 5 were submitted through the online survey portal.

The analysis outlines percentages of response and highlights common themes for each section. Please note that percentages do not all add up to 100 due to rounding, and numbers of responses reflect that respondents may have mentioned multiple themes.

We have considered all responses to the 2022 consultation and have identified and grouped themes within answers for each question. Policy decisions on relevant themes have been outlined in the ‘Government decision’ sections, which correspond to the following areas: 

• products in scope
• businesses in scope
• services in scope
• further feedback

Products in scope  

Only advertisements for ‘less healthy food and drink’ are caught within the scope of the advertising restrictions. There is a 2-stage approach for defining a product that is considered ‘less healthy’ for the purposes of the restrictions. The product needs to:

• fall within one of the product categories in the schedule to the draft regulations
• score 4 or above for food, or 1 or above for drink, when applying the 2011 technical guidance to the 2004 to 2005 nutrient profiling model (NPM)

We have previously consulted on the content of the categories. In this consultation, we asked respondents whether the draft regulations make it clear how to determine whether a food or drink falls within scope of the restrictions. 

We discuss the breakdown of responses and government decision for each question below.  

Question 1

Do you agree or disagree that regulation 3 makes it clear how businesses and regulators can determine if a food or drink product is in scope of the advertising restrictions?

Consultation feedback 

Of the respondents who answered the question:

• 54% agreed that regulation 3 makes it clear how businesses and regulators can determine if a food or drink product is in scope of the advertising restrictions
• 46% (23 respondents) disagreed with this statement, of which over half were businesses

Of those respondents who disagreed (and provided an explanation), the 2 most common themes were:

• requests for the regulations to exempt brand advertising (raised by 11 respondents)
• that further guidance was required for clarity on exemptions and calculating scores for food and drink (raised by 5 respondents) in line with the guidance on the locations and volume price promotions restrictions

In addition:

• 2 respondents raised issues about the composition and types of products
• 2 suggested there is a lack of rationale for inclusion of some products
• 3 respondents did not provide an explanation 

Government response 

Having considered the responses to the question, regulation 3 accurately and clearly describes how businesses and regulators can determine if a food or drink product is in scope of the advertising restrictions. We will not make any further changes on this basis.  

We repeat here that brand advertising is outside of the restrictions’ scope, as previously outlined in our 2021 consultation response. The general prohibitions (as outlined in sections 321A(1), 368FA(1) and 368Z14(1) of the Communications Act 2003 can only apply to advertisements for an identifiable less healthy product. The regulations do not require an exemption or any other changes. Implementation guidance issued by the frontline regulator, the Advertising Standards Authority (ASA), will provide further information on how this will work in practice.  

The government will provide further guidance to explain the product categories as outlined in the regulations. We anticipate that this will, to the extent appropriate, be in line with guidance set out in support of the Food (Promotion and Placement) (England) Regulations 2021. This guidance will sit alongside implementation guidance issued by the ASA. 

Question 2

Do you agree or disagree that regulation 3 clearly describes standards for determining the nutrient profiling model score for a product, including accessing the technical guidance document?

Consultation feedback 

Of the respondents who answered the question:

• 56% agreed that regulation 3 clearly describes standards for determining the NPM score for a product, including accessing the technical guidance document
• 41% disagreed
• the remaining respondents selected ‘I don’t know’

Of those who disagreed (20 respondents), the most common theme was that regulation 3 is unclear because it does not refer explicitly to the 2004 to 2005 NPM (raised by 10 respondents). Of the remaining who disagreed:

• 3 respondents requested assurances that government would not switch NPM models underpinning the regulations without consultation with stakeholders
• 3 respondents raised that further support is needed for businesses on calculating NPM scores
• 2 respondents raised concerns about the suitability of the NPM in calculating the score for food and drink
• 2 respondents did not provide an explanation

Government response

Having considered the responses to the question, regulation 3 accurately and clearly describes standards for determining the NPM score for a product, including accessing the technical guidance document. 

The 2011 Nutrient Profiling Technical Guidance sets out, and only applies to, the 2004 to 2005 NPM. As such, by only referring to the 2011 guidance, the regulations are clear that the 2004 to 2005 model will be used to determine whether a food or drink falls within scope of the advertising restrictions. The regulations align with the Communications Act 2003, which sets out that the products in scope of the restrictions from 1 October 2025 will be determined by reference to the 2011 Nutrient Profiling Technical Guidance.

Question 3

Do you agree or disagree that the text in the schedule clearly and accurately describes which products fall into each category?

Consultation feedback 

Of the respondents who answered the question:

• 40% agreed that the text in the schedule clearly and accurately describes which products fell into each category
• 56% of respondents disagreed
• the remaining respondents selected the ‘I don’t know’ option

27 respondents disagreed, with 17 of these respondents requesting further guidance, 12 respondents requesting further clarity on the interaction with the promotions restrictions guidance, and 5 respondents requesting clarity on specific categories or products.

9 respondents raised other issues either already addressed in previous consultations, or requested exemptions for certain products (such as infant food products and infant formula, and total diet replacements for weight control products), or requested certain products to be within scope of the regulations.

One respondent did not provide an explanation.  

Government response

The government will provide further guidance on product categories before the restrictions come into force, which will include examples of what food and drink fall within scope of specific categories. The product categories largely align with those used for the promotions restrictions and their corresponding guidance, to the extent it’s appropriate. 

The government’s policy aim is for the following products not to be caught by the advertising restrictions: 

• infant formula, baby food, follow-on formula, and processed-cereal based foods for infants
• total diet replacements for weight control products
• meal replacement products with an approved health claim
• food supplements
• drinks used for medicinal purposes

These products will not be caught within the advertising restrictions because they are already subject to separate regulatory regimes.

The regulations will be amended to ensure that these food and drink products are not restricted.  

We will also update instances where the advertising regulations cross-reference other legislation that has since been updated, is no longer in force and/or has been replaced by other legislation.   

Question 4

Do you agree or disagree that the text in regulation 3 makes it clear all categories apply to both retail and out-of-home food and drink products?

Consultation feedback 

Of the respondents who answered the question:

• 76% agreed that the text in regulation 3 makes it clear all categories apply to both retail and out-of-home food and drink products
• 19% disagreed
• the remaining answers were ‘I don’t know’

Of those who disagreed (9 respondents):

• 4 respondents requested further clarity in guidance on how the regulations applied to retail and out of home sectors and in relation to prepacked and loose products
• 2 respondents did not understand the rationale behind the divergence in categories between the product categories for promotions and advertising
• some responses disagreed because the rationale behind including Category 14 (Sandwiches) was unclear

Concern about the name of the schedule was also raised, as it currently implies that all products that fall within the categories in scope are less healthy for the purposes of the restrictions, regardless of whether they pass the NPM.

3 respondents did not provide an explanation why they disagreed. 

Government response

Having considered all responses to this question, regulation 3 is clear that all categories apply to both retail and out-of-home food and drink products. The government intends to publish guidance that will illustrate this prior to the restrictions coming into force. This guidance will sit alongside implementation guidance issued by the ASA.  

As we have set out before, we aim to align the product categories in scope of the advertising restrictions with the promotions restrictions to the extent appropriate. Certain differences, such as those in Category 13, are because the advertising restrictions apply to both retail and out of home settings, whereas the promotions restrictions only apply to the former.

We will remove Category 14 (Sandwiches) from the schedule of categories in scope. It remains the government’s policy intention for sandwiches (which can include baguettes, ciabattas, wraps, bagels, filled muffins, filled buns or baps, filled croissants, toasties or paninis) to be caught within scope of the restrictions, regardless of whether these are sold in retail settings or out of home. It is the government’s intention for sandwiches to be caught within Category 13 (which includes main meals and components of main meals) as they are consumed as a main meal, or as a component of a main meal. As mentioned above, Category 13 covers components of a main meal regardless of whether they are purchased in retail or out-of-home settings.   

We will change the title of the schedule from ‘Categories of less healthy food’ to ‘Categories of specified food and drink’ or a similar title. A product that is considered ‘less healthy’ needs to:

• fall into a relevant product category
• score 4 or above for food and 1 or above for drink, when applying the 2011 technical guidance to the 2004 to 2005 NPM

This new wording will align with our intention, and with the wording in the promotions restrictions.  

Businesses in scope  

To ensure that the policy is proportionate, the Communications Act 2003 includes an exemption for food or drink SMEs from the restrictions on advertising of less healthy food and drink.  

While the primary legislation outlines the exemption itself, the draft regulations will define the scope of ‘food or drink SME’ in regulation 4. 

We discuss the breakdown of responses and government decision for each question below. 

Question 5

Do you agree or disagree that the definition in regulation 4 accurately and clearly describes what businesses will be classified as ‘food or drink SMEs’?

Consultation feedback 

Of the respondents who answered the question:

• 80% agreed that regulation 4 accurately and clearly describes what businesses will be classified as ‘food or drink’ SMEs
• 13% of respondents disagreed (6 respondents)
• the remaining respondents selected the ‘I don’t know’ option

Of those who disagreed:

• 2 respondents requested guidance on the meaning of ‘businesses which involve or are associated with the manufacture or sale of food or drink’ as outlined in regulation 4(1)(a).   
• 2 respondents suggested the definition of ‘SME’ should include turnover, in line with the definition in the Companies Act 2006

Government response

Having considered the responses to the question, regulation 4 accurately and clearly describes which businesses will be classified as ‘food or drink SMEs’. We will not make any further changes on this basis.  

The policy aim is for any persons (including franchises) selling food or drink, who do not fall within the definition of ‘food or drink SME’, to be subject to the restrictions. This applies regardless of whether the sale of food and drink is the business’s primary purpose. For example, cinemas that sell popcorn and snacks would be subject to the restrictions if they are not a ‘food or drink SME’.   

We intend to align the definition of ‘food or drink SME’ with those businesses that are not ‘qualifying businesses’ in the Calorie Labelling (Out of Home Sector) (England) Regulations 2021. This definition only considers employee headcount and does not consider turnover. Therefore, we will not be making any changes on this basis. 

Question 6

Do you agree or disagree that the definition in regulation 4 accurately and clearly describes how to define employees of a business?

Consultation feedback 

Of the respondents who answered the question:

• 82% agreed that regulation 4 accurately and clearly describes how to define employees of a business
• 9% of those who answered disagreed
• the remaining respondents selected the ‘I don’t know’ option

Of those who disagreed (4 respondents ):

• 2 respondents requested more clarity on the meaning of people being employed ‘for the purposes of’ those businesses as outlined by regulation 4(1)(b)
• 3 of the respondents who disagreed also suggested that the definition of food or drink SME should consider turnover as well as employee headcount, to close loopholes where companies using agency staff would fall underneath the headcount

Government response

Having considered the responses to the question, regulation 4 accurately and clearly describes how to define employees of a business. We will not make any further changes on this basis.  

Regulation 4(6)(d) provides further detail on the meaning of persons employed ‘for the purposes of’ a business. This includes employees of the business itself, and staff of an associated company of the business who also work for the purposes of the business. ‘Associated company’ means a company that is a parent undertaking or subsidiary undertaking, within the meaning of the Companies Act 2006.  

We will look to provide examples of this in guidance.  

Please see our decision in response to question 5 in relation to the definition of SME.  

Question 7

Do you agree or disagree that regulation 4 clearly describes what features of a business would constitute a franchise?

Consultation feedback 

Of the respondents who answered the question:

• 74% agreed that regulation 4 clearly describes what features of a business would constitute a franchise
• 9% disagreed (4 respondents )
• the remaining respondents selected the ‘I don’t know’ option

Of those who disagreed, clarification was requested of the wording in regulation 4(3), which refers to ‘franchisee [which] carries on a business activity which includes the sale or distribution of food or drink’.  

One respondent said that the definition of ‘franchise’ should apply to symbol groups, and 1 respondent said that the definition should not apply to symbol groups.  

Government response

Having considered responses to this question, we have concluded that regulation 4 clearly describes what features of a business would constitute a franchise.  

We believe the wording in regulation 4(3) is sufficiently clear and includes within scope all franchisees which sell or distribute food or drink, regardless of whether this is their primary business.  

Our intention is that the restrictions may apply to franchises and arrangements where multiple businesses often operate under the same name or banner (such as symbol groups). For the purposes of determining how many employees the business has and therefore whether the restrictions apply, the business of the symbol group retailer will be treated as part of the business of the franchisor if they meet the requirements for a franchise agreement set out in regulation 4. This aligns with the application of the definition in the Calorie Labelling (Out of Home Sector) (England) Regulations 2021.  

Question 8

Do you agree or disagree that regulation 4 clearly describes what would constitute a franchise agreement?

Consultation feedback 

Of the respondents who answered:

• 68% agreed that regulation 4 clearly describes what would constitute a franchise agreement
• 12% disagreed (5 respondents)
• the remaining respondents selected the ‘I don’t know’ option

Of those who disagreed, the most common themes were that:

• the restrictions should not apply to those operating as part of a symbol group
• the regulation is partially clear, as there are many ways of defining ‘agreement’
• the regulation should be drafted more simply

Government response

Having considered responses to this question, we have concluded that regulation 4 clearly describes what would constitute a franchise agreement.  

Please see our decision on question 7 on our policy intention regarding symbol groups.                                                         

Question 9

Do you agree or disagree that regulation 4 clearly describes that the total number of employees in a business includes those employed outside of the UK or by franchises?

Consultation feedback

Of the respondents who answered the question:

• 76% agreed that regulation 4 clearly describes that the total number of employees in a business includes those employed outside of the UK or by franchises
• 11% disagreed (5 respondents)
• the remaining respondents selected the ‘I don’t know’ option

Individual responses that disagreed requested clarity on:

• whether companies could set up smaller subsidiaries as a loophole
• how the regulations operate if there are standalone companies in different countries under the same name
• how the regulations operate when parts of a business operate separately 

Government response

Having considered responses to this question, regulation 4 clearly describes that the total number of employees in a business includes those employed outside of the UK or by franchises. We will therefore not be making any changes to the regulations on this basis.  

Our policy aim is to avoid loopholes which could be exploited through setting up subsidiaries. Regulation 4(6)(d) outlines that the employee headcount includes employees of the business itself, and staff of an associated company of the business who also work for the purposes of the business. ‘Associated company’ means a company that is a parent undertaking or subsidiary undertaking, within the meaning of the Companies Act 2006. This applies regardless of where the business, or its associated companies, operate.

Question 10

Do you agree or disagree that the definitions in regulation 4 provide sufficient overall clarity on the definition of an SME?

Consultation feedback

Of the respondents who answered the question:

• 76% agreed that the definitions in regulation 4 provide sufficient overall clarity on the definition of a ‘food or drink SME’
• 11% disagreed
• the remaining respondents selected the ‘I don’t know’ option

4 respondents also suggested that the definition of a ‘food or drink SME’ should include turnover alongside employee headcount.  

Government response

Our decision on question 5 sets out how ‘food or drink SME’ will be defined.  

Having considered the responses to this question, we have concluded that regulation 4 provides sufficient overall clarity on the definition of an SME.  

Question 11

Are there any unintended consequences that the government should consider regarding the definition of an SME?

Consultation feedback

Several respondents requested further guidance on the scope of the definition.

Several respondents also suggested the definition of ‘SME’ be aligned with that in the Companies Act 2006, to include turnover as well as employee headcount.

One respondent said that multinationals should not be able to subvert the advertising restrictions by setting up UK subsidiaries with fewer than 250 employees.  

3 respondents, including retailers, said that there should be an obligation on suppliers in a supply chain to inform retailers of their SME status.  

Government response

The government decision for question 5 confirms our intention not to include turnover as a criterion for ‘SME’ status.  

The government decision for question 9 confirms our policy aim regarding subsidiaries.  

We believe the points raised on an obligation to inform are based on a misunderstanding of the legislation. For the exemption to apply, it is the person who arranges for the advertisement to be shown on TV or ODPS, or the person who pays for the advertisement to be placed on the internet, who needs to be a food or drink SME for the purposes of the exemption. Retailers will be liable for their advertisements, even if they are advertising products from food or drink SMEs.  

We will provide further clarity on the definition of a ‘food or drink SME’ within our guidance as appropriate.  

Services in scope 

To ensure that the restrictions are proportionate, the government intends to exempt the following from the restrictions on paid-for online advertising of less healthy food and drink: 

• advertisements included in services connected to Ofcom-regulated radio services
• advertisements included in services distributing audio items by means of the internet
• internet protocol television (IPTV) services accessed through a Ofcom-regulated electronic programming guide (EPG)

The first exemption for Ofcom-regulated radio services has already been introduced in primary legislation. 

The second exemption on audio items will be introduced in secondary legislation. The 2022 consultation asked whether the first exemption is clear, and for wider views on the introduction of the audio-only exemption.  

We propose introducing the third exemption, for Ofcom-regulated IPTV services, through secondary legislation, as IPTV services were not specifically addressed in primary legislation. We are consulting on this approach; please see the new consultation on Introducing further advertising restrictions on TV and online for less healthy food and drink: internet protocol television (IPTV). 

Services connected to Ofcom-regulated radio 

Question 12

Do you agree or disagree that regulation 5 clearly describes and fully captures what constitutes a service connected to Ofcom-regulated radio services?

Consultation feedback

Of the respondents who answered the question:

• 42% of respondents agreed that regulation 5 clearly describes and fully captures what constitutes a service connected to Ofcom-regulated radio services
• 13% disagreed (6 respondents) that it was clear
• the remaining respondents selected ‘I don’t know’

Respondents who disagreed said that further clarity is required within the regulations on the services in scope of the exemption.

Several respondents also requested clarification on whether in-store radio that is streamed online (and any visual accompaniments to in-store radio) would fall within the scope of the exemption.   

Government response

Having considered the responses to this question, we have concluded that regulation 5 clearly describes and fully captures what constitutes a service connected to Ofcom-regulated radio services.  

As set out in the consultation document, audio advertisements on the online streams of Ofcom-regulated commercial and community radio stations are exempt from the online restrictions, provided there are no visual accompaniments to the sound. Regulation 5 defines ‘services connected to regulated services’ as services provided by the internet ‘distributing audio items which are the same or ​​ substantially the same as items broadcast by a relevant (in other words, Ofcom-regulated) radio service digitally or in analogue form’. Stores using in-store radio should consider whether their in-store radio services fit within this definition. If in-store radio services are not distributing substantially the same items as a relevant radio service, they may fall within the audio-only exemption in regulation 6 instead.   

The regulation defines ‘services connected to regulated radio services’ with reference to distributing ‘audio items’, rather than visual items. Regulation 5(3) also confirms that visual advertisements included in a service connected to regulated radio services, which distributes an audio item, will not be treated as part of that service – as such, if visual accompaniments to in-store radio fall within the definition of a ‘visual advertisement’, they will be in scope of the restrictions.  

Audio-only exemption 

Question 13

Do you agree that regulation 6 clearly describes and fully captures what audio-only content is?

Consultation feedback

78% of all respondents agreed that the meaning of audio-only content is clear, and 6% (3 respondents) disagreed. The remaining respondents selected ‘I don’t know’.

10 respondents requested further clarity on certain types of content, and on in-store radio.

All respondents who disagreed suggested that regulation 6 should include specific examples of services distributing an audio item, and that there should be further clarity on the meaning of an audio item.  

Government response

Having considered the responses to this question, we have concluded that regulation 6 overall clearly describes and captures what audio-only content is. We intend to provide further examples of audio-only content (as captured by regulation 6) in guidance and may elaborate further on this in the regulations.  

Please see our decision on question 12 for further information relating to in-store radio.  

Question 14

Do you agree or disagree that regulation 6 makes it clear what is considered a visual advertisement included with an audio item?

Consultation feedback

40% of all respondents agreed that the meaning of a ‘visual advertisement’ included with an audio item is clear. 46% (21 respondents) disagreed, and the remaining respondents did not select either option.  

The most common request across responses (raised by 16 respondents) was for clarity on brand advertising:

• 10 respondents sought clarity on whether regulation 6 includes visuals that are brand identifiable, product identifiable, or both - these respondents also sought clarity on whether a brand promoting generic depictions or illustrations of less healthy products would be caught within scope of the restrictions
• 2 respondents requested clarification on whether accessibility subtitles would fall within the meaning of ‘visual advertisement’, and consequently, whether this would mean that advertisements with subtitles on audio-only services would be caught within the restrictions
• 2 respondents asked for clarification on whether still or ‘cover’ images displayed on podcast platforms (for example, programme thumbnails) would mean that advertisements on such platforms would be caught within the restrictions 

Government response

Our intention is for regulation 6 to exempt advertisements for less healthy food or drink on audio-only or audio-led platforms, such as podcast platforms or music-only streaming services. We do not intend for limited visual images relating to the provision of the audio service (for example, a thumbnail of the service name) that are unrelated to the advertisement or subtitles and captions used for accessibility purposes to prevent the exemption from applying. We intend to clarify this in the regulations. 

Regulation 6 will not apply if the advertisement, or the audio item it is being carried on, has a visual component (other than subtitles for accessibility purposes). For instance, the following would not fall within the scope of the regulation 6 exemption: an advertisement on a video streaming service consisting of an audio-component describing a less healthy product, and a visual component which does not feature a product.  

Implementation guidance from the ASA will provide more information on whether a product is ‘identifiable’ for the purposes of the restrictions.  

Question 15

Do you agree or disagree that the relevant parts of the legislation provide sufficient overall clarity on the services in scope of the advertising restrictions?

Consultation feedback

22% of respondents agreed that the draft regulations provide sufficient clarity on the services in scope. 68% of respondents disagreed, and the remaining respondents either selected ‘I don’t know’ or did not select any option.

The most common theme among all responses was for a request for further clarity in guidance. Half of the respondents who disagreed that there is sufficient clarity said that it was unclear whether visual elements used on audio media would be caught within the restrictions. 

Respondents who disagreed also requested more clarity on how the restrictions apply to ‘owned media’ and ‘transactional content’.

Government response

We have responded to questions on the position of visual elements used on audio media in our response to question 14.  

We outlined in our 2021 consultation response that the advertising restrictions would not apply to ‘owned media’ or ‘transactional content’. 

The online advertising restrictions apply to paid-for advertising, as outlined in primary legislation.  

A business’ communications in ‘owned media’ are not in scope of the online restriction, as an advertisement would not be paid-for if it is placed by the business itself. For instance, an advertisement on a brand’s own social media page would not fall within the scope of the restrictions. However, paid or ‘promoted’ advertisements placed in users’ social media feeds that feature less healthy food or drink will fall within scope of the restrictions. 

‘Transactional content’ is not within scope of the restrictions as they are not ‘paid-for’ advertisements. ’Transactional content’ is information that consumers require at the point of sale or purchase (such as an item description) but does not push users to actively seek out products.

Further information on what constitutes ‘paid-for’ advertising will be available in the ASA’s forthcoming implementation guidance.

Additional comments

As part of the 2022 consultation, we asked whether respondents had any additional comments on the draft regulations.  

Consultation feedback 

A recurrent theme raised by many respondents across all questions was the need for a formal review mechanism of the policy.  

Government response

We have committed to review and evaluate the policy 5 years post implementation in our formal response to the 2019 and 2020 consultations. This is part of standard government practice.

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