The ASA’s Brand Advertising Exemption: What Do You Need To Know? – Advertising, Marketing & Branding

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Lewis Silkin

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The UK’s new less healthy product advertising rules restrict ads for “identifiable” less healthy food and drink products across TV, ODPS and paid-for online placements.

United Kingdom
Media, Telecoms, IT, Entertainment

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The UK’s new less healthy product advertising rules restrict ads for
“identifiable” less healthy food and drink products
across TV, ODPS and paid-for online placements. Alongside
exemptions for SME’s and media outside scope (such as radio,
press and posters), the regime creates an important safe harbour
for “brand advertisements.” 

In this article, we explain how the Brand Advertising exemption
works under the ASA’s guidance and Section 7 of Annex C of the
ASA’s implementation guidance, and where it applies.
It’s worth noting that the consultation on the guidance closed
on 9 October, and we are waiting for the final version. However, we
don’t expect it to change too much. 

When is a product identifiable and in scope of the
restrictions?

The statutory test is whether persons in the UK could reasonably
be expected to identify an advertisement as being for a less
healthy product. If the product is not “identifiable” as
such, the restriction does not apply. If it is identifiable, it may
still be out of scope if an exemption applies. The ASA assesses ads
case-by-case from the perspective of a reasonably well-informed,
observant, and circumspect consumer, placing weight on what people
are likely to perceive the ad is for. 

What is a “brand advertisement”?

A brand advertisement is one that promotes a brand, including
the brand of a range of products, provided it does not cross into
content that is deemed to depict a specific less healthy product. A
“range of products” means a group of related food or
drink products, including variants such as different flavours, but
not products differentiated only by pack size or packaging
format. 

This means you can promote corporate or range branding: logos;
livery; straplines; colourways; characters and jingles without
automatically triggering the less healthy product restrictions, so
long as the content does not depict a specific less healthy product
as described below. 

When the exemption does not apply: The three
carve-outs. 

The Regulations set out three circumstances where an ad
will not  qualify as a brand
advertisement. If any of these apply, and the identifiability test
is met, the ad is in scope of the restrictions. 

1. 
   Depiction of a specific less healthy product.
   If the content depicts a specific less healthy product, the
   exemption does not apply. Depiction covers name, text, imagery,
   logo, audio cue, jingle, brand character or other branding
   technique or combination of branding techniques. The “specific
   product” must be capable of being purchased and differentiated
   from other products, other than by pack size/packaging format.
   Direct pack shots, distinctive shapes, unique design features, or
   product-specific characters are likely to be problematic. Generic
   or abstract product imagery can be acceptable if it is sufficiently
   distinct from any specific less healthy product. Be cautious
   about combinations of branding that, taken together, effectively
   point to a specific variant. 




2. 
   Brand names that are also names of specific less healthy
   products. An ad that promotes a brand whose name is the
   same as the full name of a specific less healthy product will not
   benefit from the exemption. However, the exemption will still apply
   if the full product name is the name (or included in the name) of a
   company, franchise or other commercial entity established and
   holding that name immediately before 16 July 2025, or the name of
   the brand of a range that was in use for marketing, advertising or
   retail sale immediately before that date and held that name
   then. 




3. 
   Realistic imagery indistinguishable from a specific less
   healthy product. The exemption does not apply where
   the ad includes a realistic image of food or drink itself (not just
   packaging) that is visually indistinguishable from a specific less
   healthy product. “Realistic image” includes photographs,
   video, or highly realistic renders. If showing an unpackaged
   item from a range that includes both less healthy and non-less
   healthy variants that look the same, include additional information
   to make clear the product shown is a non-less healthy
   variant. 

What is the relationship with the HFSS guidance?

The ASA’s broader HFSS guidance also differentiates
brand advertising from product advertising. Advertisers should
note that the use of branding in an ad, even if the product itself
doesn’t feature, could have the effect of promoting a specific
HFSS product. The word “branding” is used in its widest
possible sense and can include logos, marks, characters, colours or
straplines that are directly associated with a particular product,
range of products or company.

What are the practical pointers for compliant brand ads?

So what can you do to bring your advertising within the brand
advertising exemption? We suggest the following:

• Create advertising for the brand, not the specific
  product.




• Focus on corporate identity or range-level branding without
  including product-specific cues that uniquely identify a less
  healthy variant.




• Use generic or stylized imagery where possible, and avoid pack
  shots, distinctive product shapes, product-specific characters, or
  jingles tied to a single less healthy product.




• If your brand name is identical to a specific less healthy
  product, consider whether a grandfathering route applies; if not,
  range or corporate branding without that name may be safer. When
  using realistic food imagery, either avoid close likeness to a
  specific less healthy product or clearly signpost that the featured
  item is a non-less healthy variant. 

Finally, don’t forget that even if an ad is caught by the
Regulations, the final step is to check how the product scores on
the Nutrient Profile Model. 

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.