What does the junk food ad ban mean for marketeers?

Lord Darzi’s damning report on the state of the NHS, and call for “bold” action to regulate the food industry, had only just landed when the new Labour government last week announced it was pushing ahead with plans for a clampdown on junk food advertising.

Former health minister Darzi’s report accused the previous government of dithering while a generation of children became obese, and Labour has made clear there will be no more delays on a 9pm watershed for TV advertising of products high in fat, sugar or salt, and an outright ban online.

Whereas the Tories unveiled the proposals mid-pandemic, to outrage from the food industry, last week’s confirmation the twice-delayed clampdown will go ahead next October was met with deafening silence.

So has the food and advertising industry accepted it was wrong to oppose the “nanny state” proposals? Or do companies believe they can work around them?

In July 2020, the FDF called the plans “draconian” and said they would render efforts by brands to create healthier options “pointless”, while costing the industry £700m in lost revenue and retailers – who also slammed the plans – a further £500m.

This week a spokeswoman for the FDF welcomed the “bold action” from government and said it was committed to working with policymakers to make the strategy work.

So what’s behind the supersized flip flop?

“At the time, back in 2020, when we were first consulted, we were concerned about the policy based on the government’s impact assessment, which showed it would have a very small impact on calories but quite a large economic impact,” says one industry source.

Indeed, government estimates put the consumption reduction per average child at just 2.8 calories per day.

“But since then things have moved on,” adds the source. “Now that the government has set out their intention to move forward with this policy, we’ve accepted that steer, and the most important thing is for the government to do all it can to help support companies on reformulation.”

Cynics might suggest that by not rocking the boat, the industry hopes to discourage the new government from more radical policies called for by campaign groups, including an extension of the soft drinks sugar levy to other areas such as confectionery.

Campaigners claim that behind the scenes, companies are already looking at how they can exploit loopholes in the laws, which one described as “wider than a Coca-Cola bus”.

In January, The Grocer revealed health campaigners were contacting then Tory ministers to complain that an Advertising Standards Authority consultation over the regulations signalled a risk of the ban being “watered down”.

The ASA’s initial guidance suggested ads would be banned if audiences could reasonably be expected to identify them as for a specific HFSS product, but campaign groups fear the same will not be true of generic advertising for the likes of pizzas or burgers.

Loopholes

Particular concerns have been raised that out-of-home giants such as Just Eat and Deliveroo will be able to continue a bombardment of ads for largely HFSS products, without falling foul of the new laws.

All eyes are now on further guidance expected from the government and the ad body to address the confusion.

“What everyone wants to know is, how far can I push a brand ad?” says Katrina Anderson, principal associate at law firm Mills & Reeve. “That is basically the thing that is going to allow big food to continue to advertise in some form, and that is the thing that campaign groups will hate. They will hate the fact this legislation will mean that a company like McDonald’s can still advertise.

“The legislation claims there is a clear distinction between a brand advert and a product advert, but the reality is much more blurred,” she adds.

“If you take McDonald’s, you could definitely have an ad that’s about the McDonald’s brand but you can’t have an ad that’s about a Big Mac. But could you have a whole load of ads that have images of these products? What about an ad where someone is eating a Big Mac?”

Read more:

• Calories and salt slashed in typical basket claim food bosses

• Junk food watershed and online ban set to come in from October 2025

When it comes to the online ban, the potential loopholes are even greater, says Anderson.

“For me there is a question about social media influencers that doesn’t seem to have been answered.

“If you pay a high-profile social media influencer to promote your products, that will probably be caught. But what about if you give them some free stuff, some branded merch. Is that payment and will that be covered?”

While ITV chief executive, Dame Carolyn McCall, warned the ban would cost the broadcaster millions and threaten important programmes such as Mr Bates vs The Post Office, there has also been a low profile response from advertising bodies to Labour’s confirmation, who, like the FDF, welcomed the greater “certainty”.

But the Grocer has learnt advertising agencies are also busy looking at how they can help HFSS products continue to reach audiences.

Jon Howard, partner at ad agency Quiet Storm, which has worked on campaigns for the likes of Haribo, Vimto and Icee, says there is huge “confusion and contradiction in the small print”.

“It is possible that brands with compliant sub-ranges or non-product brand advertising may still be allowed. It’s a grey area yet to be fully understood.

“Similar to the Soft Drinks Industry Levy, which led to product reformulation, it is possible that brands with compliant sub-ranges or non-product brand advertising may still be allowed.

“There has been a lot of coverage about the 9pm watershed for TV and far less about the total ban on paid digital and social, which will have a bigger impact on marketing behaviour”, he adds.

“We have seen ad spend moving into these channels in recent years as marketers seek to lower costs and deliver immediate returns.

“With that tap turned off, marketers will have to face the fact that pure organic reach is nigh-on impossible to deliver for most brands.

“If you want to talk to more than a handful of hardcore fans in the future, perhaps the only way to succeed online will be to engage in ever more ‘impactful’ brand behaviours that make headlines in the real world.

“It creates the potential for an arms race of escalating extremes”

Howard says brands may also look to less fashionable areas of marketing not covered by the ban, such as radio.

“We may see the dawn of the golden age of radio advertising as brands harness creativity to overcome the background nature of the media.”

Calvin Innes, creative director at JvM Nerd London, which recently worked on a campaign for a special-edition Super Mario Haribo, claims the ban could have a massive ripple effect on UK fast food marketing, especially as it intersects with pop culture.

“With traditional TV slots limited, brands are already shifting focus to digital platforms, gaming, and pop culture tie-ins, which have massive crossover appeal with kidults and young audiences alike,” he says.

“We’re already seeing a rise in immersive marketing within online gaming spaces, collectible toys, and brand partnerships with movies, comics, or franchises, and the new regulations are certainly not going to slow this trend.

“While the ban will absolutely limit direct exposure to younger viewers, which can only be a good thing, it will likely push brands to adopt more creative and subtle marketing strategies. This should lead to healthier product messaging, aligning with the policy’s goals. However, it could just signal a redirection of the marketing efforts.”

Meanwhile Josh Clarricoats, co-founder of Insiders, an agency with clients including Belvoir Farm, Merchant Gourmet and Holy Moly, says the danger is the ban will spark an avalanche of new “nutritionally empty” products.

“For example, zero sugar drinks, giant chicken burgers that somehow pass the guidelines and still don’t help with overall health.

“It’s papering over the cracks, making government look like they’re doing something and encouraging work-arounds rather than dealing with the multiple issues that are actually behind the problem.

“It’s a waste of valuable time and resources that should be spent elsewhere.”

Yet some food brands strongly disagree with that verdict and welcome the ban as the start of what they hope will be much wider action to tackle the proliferation of HFSS products.

“With the UK facing a childhood obesity epidemic, the food industry has a responsibility to help families eat more healthily,” says Stéfan Descheemaeker, CEO of Nomad Foods, the company behind Birds Eye, Aunt Bessie’s and Goodfella’s.

“For most food categories, industry can reformulate and use healthier ingredients and recipes. We welcome this important step in the UK, which will encourage the reformulation of products and bring new, healthier ones to market. The UK advertising ban forms part of what needs to be a global effort to tackle the obesity crisis we are facing around the world.”

Read more:

• Henry Dimbleby takes National Food Strategy ‘on the road’ with new government consulting arm

• Darzi report calls for ‘bold action’ to regulate food industry on obesity

The Darzi report has sparked renewed calls from health campaigners for sweeping new taxes on sugar and salt as well as granting more powers to local authorities to limit availability of fast food, something seemingly close to the heart of health secretary Wes Streeting.

Meanwhile, the FDF, rather than predicting the ad clampdown will cause economic catastrophe, has urged the government to work more closely with the food industry to help companies invest in reformulation, suggesting a new £4m fund to help SMEs invest in healthier production technology.

Health secretary Wes Streeting, for his part, has said the government has no plans, as yet, to go down the road of new taxes on the industry.

Labour will be hoping the junk food ad clampdown, albeit dusted off from the attic of the previous government, will be an effective weapon, rather than full of loopholes that brains in the advertising industry can exploit while the obesity crisis continues.