Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.

HFSS product advertisements are subject to media placement restrictions (see rule 15.18 and Food: HFSS Media Placement) and HFSS ads directed at under-12s through their content are not permitted to include promotions (rule 15.14) or celebrities and licensed characters popular with children (see rule 15.15 and Children: Food).

If an ad features or makes reference to an identifiable HFSS product, either alone or as one of a range of products shown, it will be treated as an ‘HFSS product advertisement’ and will be subject to the HFSS restrictions.

Marketers should also 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.

Please see our Advertising Guidance note on ‘Identifying brand advertising that has the effect of promoting an HFSS product’ for detailed guidance, but in summary;

  1. Product branding - If an ad features branding (be it for a company, range or product) that is ‘synonymous’ with (i.e. very closely associated with) a specific HFSS product, the restrictions are likely to apply even if the product itself isn’t featured.
  2. Generic products - If an ad includes a generic product that can't be specifically identified as being HFSS, if the range of products the ad relates to is mainly HFSS then the restrictions are likely to apply. 
  3. Range branding - Where branding synonymous with a range of products appears, if the products in the range are mainly (more than 50%) HFSS then the restrictions are likely to apply.  Sometimes range branding is equally synonymous with the original product in that range.  Where that product is HFSS, the branding could be seen to have the effect of promoting that specific HFSS product rather than the range.
  4. Corporate branding - Company brands usually have broader identities than being synonymous with individual products. However, they are often "synonymous with" the range or ranges of products that they manufacture or sell. If these are mainly HFSS, and the brand isn’t synonymous with an identity other than the provision of HFSS products, the restrictions are likely to apply to ads featuring the company branding. In assessing whether an advertiser has demonstrated that they are synonymous with a non-HFSS identity, the ASA is likely to take into account factors such as the company’s provision of non-HFSS products, provision of goods and services other than food and soft drink products and/or association with significant initiatives relating to education, sport, community etc.  If these factors are relevant but the brand falls a little short of being synonymous with a non-HFSS identity, the restrictions are less likely to apply if the theme of the ad relates exclusively to social responsibility, good causes and similar.
  5. Incidental products - For clarity, the restrictions are unlikely to apply to ads with only incidental references to HFSS products (something in the background on a supermarket shelf, for example).

It’s important to note that the phrase ‘HFSS product advertisements’ has been deliberately worded to exclude product packaging and point-of-sale material, like posters and stands, from the scope of these restrictions.  This is because this material generally only falls with the scope of the CAP Code in limited circumstances (see Remit: Products and packaging and Remit: Point of sale).  The restrictions would, however, apply to images of this material in ads. 

Marketers are advised that the restrictions won’t apply to non-HFSS product ads, but care should be taken when using branding that also relates to HFSS products.  In that case, the ad needs to be very clearly promoting the non-HFSS product(s).

Marketers should also take care with multi-channel promotions because, although a packaging element isn’t covered by the HFSS rules, any linked microsites or advertising of the promotion will be subject to the restrictions.

As the ASA investigates and publishes rulings in relation to rules 15.14, 15.15 and 15.18, this advice will be expanded to include useful examples.

See also; ‘Food: HFSS Overview’, ‘Food: HFSS Media Placement’ and ‘Children: Food’.

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