On 10 July 2023, Ofcom published the outcome of its consultation on proposed statutory restrictions on advertising and sponsorship for less healthy food and drink products. Ofcom has confirmed that it will press ahead with its plans to amend the BCAP Code and Broadcasting Code to reflect the statutory restrictions and appointing the ASA as a co-regulator to enforce these restrictions online.

Between 21 February and 21 April 2023, Ofcom consulted on its proposed statutory restrictions on advertising and sponsorship for less healthy food and drink products. For a breakdown of the consultation and proposed statutory restrictions, see our previous article here.

A refresher of the consultation

The Health and Care Act 2022 amended the Communications Act 2003 to introduce new restrictions on advertising and sponsorship for food and drink products that are high in fat, salt or sugar (“HFSS products”). These restrictions apply to advertising on Ofcom-regulated TV, on-demand programme services and online services, with each prohibited from (1) including advertising for HFSS products between 5:30am and 9:00pm, and (2) using paid-for online adverts for HFSS products when aimed at UK users (at any time).

To implement these statutory restrictions, Ofcom consulted on:

1. proposed amendments to the BCAP Code and Broadcasting Code to reflect these new restrictions; and
2. appointing the Advertising Standards Authority (ASA) as a co-regulator to enforce these restrictions online.

Outcome of the consultation

1. ASA as a co-regulator

Almost all respondents of the consultation were in favour of Ofcom’s proposal to designate the ASA as a co-regulator, though some raised concerns around the ASA’s enforcement capabilities as they considered the ASA to be more reactionary rather than proactive. Ofcom decided to continue with its proposal, designating the ASA as a co-regulator for online enforcement on the basis that the ASA will:

• handle complaints, including from the public and industry, about online advertising for less healthy food and drink products;
• maintain reporting requirements when a breach does occur, recording where an advertiser breaches the rules and requiring that such advertisers promptly comply with the ASA’s decision; and
• draw up and review guidance on the ASA’s functions designated by Ofcom in accordance with the Communications Act 2003.

Even with the ASA as a co-regulator, Ofcom will retain statutory backstop powers. Essentially, where an advertiser fails to co-operate with the ASA, the ASA can refer the matter to Ofcom to consider whether to exercise its statutory powers (such as an enforcement notification or imposing a statutory sanction).

1. Amendments to the BCAP Code and Broadcasting Code

The proposed amendments to the BCAP Code and Broadcasting Code did not see many changes following the consultation, with Ofcom agreeing to make minor amendments in relation to definitions. For example, the proposed wording will now see a hyperlink to the guidance accompanying the rule in the BCAP Code.

See the final version of the changes to the BCAP Code and Broadcasting Code here.

Next steps

In its statement published 10 July 2023, Ofcom has confirmed that these restrictions will take effect from 1 October 2025.