Rewrite ‘junk food’ ad ban or face court action, government told

Food companies have warned they will take legal action to challenge the government’s new junk food advertising ban unless it agrees to rewrite the regulation.

The Grocer has learnt talks involving both supermarkets and major food manufacturers have reached “deadlock”, despite this week’s intervention by ministers in a bid to reassure brands they would not face hundreds of millions of pound of ads being inadvertently caught up by the ban.

In the statement published on Monday, ministers said the new 9pm TV watershed ban and total ban online was not intended to block brands ads that did not identify specific HFSS products, including a raft of blockbuster Christmas ads, which supermarkets claim are at risk of being scrapped.

The move followed the launch of a consultation by the ASA, which will police Ofcom’s watershed when it comes into force in October. The ASA said its interpretation of the regulation meant it would effectively outlaw generic brand ads from companies’ HFSS products, even if the ads were for more healthy products in their stable.

“We do not expect the perception or association of a corporate brand with less healthy products to automatically bring an advert into scope of the restrictions,” health minister Ashley Dalton said in the statement.

“The government does not intend to prevent brands from advertising, but instead intends to give businesses an incentive to innovate and create healthier products.”

However, with the ASA due to publish its final guidance next month, industry sources said they believed it would stick to its interpretation. This meant companies had no legal assurance that ads would not be barred when the ban came into force, with health groups said to be eyeing the industry “like hawks” to themselves take action if companies breach the rules.

“We’ve effectively reached an impasse where the legal advice from the government and from the ASA is completely at odds,” said one leading industry source.

“The ministerial statement may well set out that it is not the government intention to capture brands in this, but that is very different from the cast-iron legal guarantees that companies are demanding. 

“It means this dispute is heading for one of two outcomes. Either the government agrees to amend the legislation or we’re going to end up in a situation where advertisers are going to take legal action against the regulator for ads they believe are perfectly legitimate. 

“This is becoming a battle with the regulator but the root of the problem lies with poorly worded regulation which had got the industry and the regulator tied up in knots. With every week that passes by the economic impact of this situation becomes more pressing, especially given the financial backdrop we have at the moment.”

Confused companies

The FDF said that while it welcomed the minister’s intervention, it did not clear up the confusion that risked a major economic blow to companies. 

“The minister’s statement is helpful clarification that the new rules are intended to limit advertising of HFSS products, rather than to restrict brand advertising,” a spokeswoman said.

“We hope the ASA will now be able to publish clear guidance to companies quickly, given the restrictions come into force in just six months’ time, and at the beginning of the crucial Christmas trading period.

“However, the only way to provide absolute clarity would be to change the legislation, rather than leave its interpretation to the courts.”

However, health groups accused the industry of trying to draw out the already much-delayed legislation still further.

“While it’s disappointing – though not surprising – that advertisers are challenging the legislation at this late stage, such opposition only wastes valuable time and resources, and further undermines public trust in food businesses,” said Katherine Jenner, director of the Obesity Health Alliance.

“These regulations have been in development for eight years and on the statute books for three years.

“Previous lobbying resulted in a series of exemptions, including for chocolate spreads, sausage rolls, and ‘party food not intended to be consumed as a complete meal’, and now for ‘pure’ brand advertising, despite no health justification for these carve-outs. Yet, some are still not satisfied.

“The government, regulators, health advocates and most responsible advertisers have been clear on the importance of these restrictions: there can be no more delays or excuses.”