As leaders of two of the UK’s advertising trade bodies, our members include the UK’s supermarkets and many brands that stock their shelves, as well as the agencies, media and tech companies that help promote the products available to customers every day.
One of our most important tasks is to help our members navigate changing political tides.
Between 2016 and 2022, we went through prime minister after prime minister – and when it came to obesity and advertising, policy after policy.
Theresa May created an obesity strategy. When Boris Johnson took office, he downplayed it. Then, post-pandemic, he resurrected it. After his defenestration, Liz Truss promised to bin the whole strategy… only for Rishi Sunak to recommit to it.
It all added up to profound uncertainty – and if there’s one thing business can’t abide, it’s uncertainty. It doesn’t help our members plan for change, and it’s a surefire route to creating policies with unintended consequences.
Such is the case with the rules on ‘less healthy’ food and drink (LHF) advertising – the 9pm watershed on TV and on-demand programme services, and the total ban on paid-for online ads – coming into force on 1 October. This is now causing real difficulty for advertisers, and we’re calling on government to act.
The obesity crisis is real
Before we set out what we’re asking for, let’s be clear what we’re not saying. We’re not saying – and never have – that Britain doesn’t face an obesity crisis.
Nor are we saying that industry doesn’t have a part to play in solving that issue. Again, we never have.
Our food and drink members have shown their commitment by driving down the amount of fat, sugar and salt in their products, creating healthier options, and in some cases moving away from advertising certain products altogether.
For some critics, progress of this kind will never be enough, and only a total ban on some companies being able to advertise – everywhere, in every medium – will suffice.
It’s up to those who govern us to strike a balance, having made a judgment on the nature of the problem and what interventions will work.
Confusing guidance
That’s why, when the Conservatives legislated for the LHF restrictions in the Health and Care Act 2022, they were explicitly clear. The restrictions applied to ads which showed identifiable products.
To quote the government at the time: “Provided there are no identifiable HFSS products in the adverts, brands can continue to advertise. This is to ensure that brands are not pigeonholed as synonymous with HFSS products and have the freedom to reformulate and move towards offering healthier products.”
The current Labour government has repeatedly confirmed this is also its understanding of the law, and its policy intention.
The controversy of recent months has come about as the advertising regulator has consulted on the guidance for the new restrictions – i.e. what marketers will and won’t be able to depict in ads. The crux of the issue is that, despite the government’s assurances, there is no explicit mention of the brand advertising exemption in the Health and Care Act.
Working through different legal positions has resulted in the Committee on Advertising Practice drafting guidance that would restrict brand advertising. Our members have been alarmed by the proposed approach, which would seemingly stop some companies from advertising at all in the affected media.
Even an ad that isn’t even about the brand’s food and drink offering, but about sustainably sourcing ingredients or support for charitable work, could be banned.
This isn’t the basis on which advertisers have been preparing for these restrictions. They’ve been preparing ad campaigns and creative to comply with ministers’ edicts that ads should not show identifiable LHF products.
It’s also in direct contradiction to the government’s policy – as legislated for by parliament – that brand advertising should be permitted, and that brands shouldn’t be treated as synonymous with LHF.
What’s more, it’s entirely self-defeating, removing any incentive for brands to reformulate – and hence really play their part in tackling the obesity crisis.
We need legislation
The regulator is now caught on the horns of a legal dilemma and advertisers are still without guidance just five months before these rules come into effect. So what should the government do?
Our answer is clear: legislate. If there is doubt the brand exemption exists in the law – and the regulator does, of course, have to comply with the law – then ministers should swiftly act to give effect to their stated policy position.
This is not about food and drink companies looking for loopholes, or ways to get around the new restrictions. On the contrary, in every forum we have held with our members, we’ve found an eagerness to comply not just with the letter but also the spirit of the rules.
It’s also not about seeking a delay to the 1 October implementation date nor the abandonment of a manifesto commitment. We hope any change to the law could be made swiftly and promptly, and enable CAP to get on with its work in producing guidance.
What this is about is certainty: the establishment of reasonable and proportionate rules. These rules should adhere to the government’s policy, and enable the food and drink and advertising sectors to get on with both the investment that drives our economic growth, and developing healthier offerings that can help tackle obesity.
Business success is built on consistency and stability when it comes to decisions around regulation, and we hope you will join us in making sure policy decisionmakers know this is mission critical for the many businesses affected right now.
What we need is for ministers finally to land us at the right destination for both the economy and for public health.
Stephen Woodford, CEO, Advertising Association & Phil Smith, director general, ISBA
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