Junk food ad ban facing legal challenge from food companies

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Food companies have instructed lawyers to prepare a possible legal challenge against the government’s looming junk food advertising ban, The Grocer can reveal.

It’s understood several companies whose products are in the firing line of the proposals are working with trade associations to weigh up a challenge. There have been claims the ban, due to come into force in October, has overreached its original aims.

The Committee of Advertising Practice and the Advertising Standards Authority have been drawing up guidance on how the rules will work for Ofcom. Last month, they claimed that a ban on ads for specific HFSS products before the new 9pm watershed would have a sweeping impact on generic brand ads for companies who typically sell products considered to be unhealthy.

Lawyers claim the guidance, which is due to be finalised as early as next week, flies in the face of the plans first drawn up under the Tories, as well as ministerial statements of intent by the new government.

The HFSS legal challenge

“You’re looking at whole brands not being able to advertise,” said one leading source.

“These brands tend to be the ones that do a lot of advertising. We’re looking at confectionery brands and people in the food to go space who could be completely banned from advertising.

“It’s the biggest single threat facing these companies.”

The source added: “This ban comes in in October and we’re already in February and there is this huge uncertainty about whether campaigns that are already planned will be able to run.

“What we know is that that there are people already looking at legal challenges in this space.”

Bodies such as the Advertising Association have warned the plans would prejudice the ability for companies to advertise, which they claim is “crucial for growth and competition”.

“Large manufacturers could be losing tens of millions of pounds in advertising spend this year alone as a result of having to pull brand advertising they had planned for when the legislation comes in in October,” another source told The Grocer.

However, a legal challenge would be a high stakes move, with companies believed to be reluctant to be seen as “fighting on behalf of junk food”, said sources.

Fresh in their minds is the high-profile failure of a challenge by cereal giant Kellogg’s in 2022 against the government’s HFSS promotions clampdown, after it failed in a bid to have its products excluded.

As an alternative to an outright legal challenge, some companies are understood to be urging ministers to swiftly bring forward a statutory instrument in Parliament to pave the way for brand ads to continue, as they believe the original legislation intended.

“We’re pretty sure that the government does not actually want brands to be banned,” added a source.

“The best way to resolve this problem would be to amend the regulation, but it would have to be done quickly.”

Brand ban u-turn

In 2021, the government said that brand advertising (both online and 9pm TV watershed), would still be allowed when the ban came in, “provided there are no identifiable HFSS products in the adverts”.

It added: “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.”

Last week, Labour media minister Chris Bryant told the LEAD advertising conference that he wanted the ban to be “proportionate and sensible” and allow incentives for brands to promote healthier products.

“The CAP announcement on the draft guidance cuts across industries expectations on how the so-called “brand exemption” will enforced in practice,” Katrina Anderson, a regulatory lawyer at Mills & Reeve, told The Grocer.

“Importantly it is also contrary to government announcements on which had made it clear that a distinct brand exemption was supposed to exist for policy reasons – specifically to encourage brands to reformulate to reformulate over time.

“These statements make it clear that there was a clear policy intent which is likely now not being reflected in the guidance. This could form the basis for a legal challenge as legislation is supposed to be interpreted in line with the intention of Parliament when it passed the legislation.”