On 5 January 2026, new rules in the CAP and BCAP Codes on the advertising of ‘less healthy’ food and drink products came into force.
The regime applies to products classified as HFSS (high in fat, salt and sugar) under the relevant nutrient profiling criteria and falling within specified legislative categories.
Two recent cases concerning ads by Mars Wrigley and KFC have now offered an early indication of how the UK’s new rules restricting the advertising of ‘less healthy’ food and drink products will operate in practice.
Although the two incidences reached different outcomes, they provide valuable insight into the ASA’s approach to product identifiability, nutritional classification and the limits of the brand advertising exemption
The regulatory framework
The new rules reflect provisions introduced by the Health and Care Act 2022 through amendments to the Communications Act 2003, together with the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 and the Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025.
The CAP and BCAP Codes prohibit advertising for identifiable ‘less healthy’ food products:
- On TV and on-demand services between 05:30 and 21:00
- In paid-for online media at any time
A product will be caught only if it satisfies a two-stage test: it must fall within a specified category (such as confectionery, savoury snacks or soft drinks) and be classified as ‘less healthy’ under the UK Nutrient Profiling Model.
Importantly, the legislation includes an exemption for certain forms of brand advertising (i.e. businesses may promote their corporate brand, and in some circumstances, product ranges, even if the brand is commonly associated with or sells HFSS products). However, that exemption will not apply where an advertisement identifies or depicts a specific less healthy product or otherwise has the effect of promoting an identifiable less healthy product or a range consisting mainly of less healthy products.
The concept of ‘identifiability’ is therefore critical and the key question in many cases is likely to be whether consumers can reasonably identify a particular less healthy product from the advertisement.
Mars Wrigley: When a brand character becomes a product reference
The Mars Wrigley decision concerned a paid-for Instagram advertisement featuring two M&M’s characters, together with the M&M’s branding and a link to the company’s website. The advertisement did not include product packaging or depict consumers eating confectionery.
Mars argued that the advertisement promoted the M&M’s brand rather than a specific product and therefore fell within the brand advertising exemption. The ASA disagreed.
While accepting that the M&M’s name and logo related to a broader product range, the ASA concluded that the yellow oval M&M’s character identified Peanut M&M’s. It considered that the combination of the character’s distinctive oval shape and yellow colouring was sufficient to identify a specific less healthy product, meaning the brand advertising exemption did not apply. The complaint was therefore upheld under CAP Code rule 15.19.
The decision is significant because it demonstrates the ASA’s willingness to look beyond product packaging and express product references when assessing compliance. Instead, the regulator considered how imagery, colour and characterisation might lead consumers to identify a particular product.
This approach is consistent with the ASA’s guidance on branding techniques, which distinguishes between branding associated with a company or product range and branding associated solely with a specific less healthy product. The central question was whether the yellow oval M&M’s character functioned as a brand asset for the wider M&M’s range or as a reference to Peanut M&M’s.
By adopting the latter view, the ASA signalled that consumer perception is likely to carry greater weight than an advertiser’s own characterisation of its brand assets. The ruling will therefore be of particular interest to brands whose visual identity is closely linked to specific HFSS products.
KFC: The importance of nutritional classification
By contrast, the ASA’s ruling on KFC, published on the same day, found no breach across a series of TV, video-on-demand and social media advertisements. The complaints related to KFC’s ‘Double Deal’ campaign, which featured burgers, drinks and, in some versions, chicken being fried.
Applying the same legislative and regulatory framework considered in Mars Wrigley, the ASA first assessed whether the products shown were ‘less healthy’ products for the purposes of the legislation. It accepted KFC’s evidence that the products featured, including the Fillet Burger and Mini Fillets, were not HFSS products under the relevant nutrient profiling criteria.
However, because the adverts showed realistic food imagery, the ASA then considered whether the products depicted were visually indistinguishable from specific HFSS products sold by KFC. If they had been, the adverts could still have fallen within the rules.
However, the ASA concluded that the products shown were visually distinguishable from any specific HFSS products sold by KFC and so the adverts fell within the scope of the brand advertising exemption. This meant that they did not breach the CAP code.
Perhaps surprisingly, the decision is also a useful reminder that foods consumers might regard as ‘unhealthy’ (like food which is deep fried) are not automatically caught by the HFSS regime and also demonstrates that the brand advertising exemption remains available where an advertisement does not identify a specific HFSS product.
A cautious approach
These early rulings provide valuable insight into how the ASA intends to enforce the new HFSS advertising restrictions. In particular, they demonstrate that the regulator’s focus is likely to be on what consumers can reasonably identify from an advertisement, rather than solely on the advertiser’s intended message.
The contrast between the two decisions is interesting. In Mars Wrigley, the ASA found that the branding identified a specific HFSS product, preventing reliance on the brand advertising exemption. In KFC, no specific HFSS product was identifiable, allowing the advertisements to remain outside the restrictions. The decision also confirms that products commonly perceived as ‘unhealthy’ will not necessarily be classified as HFSS for regulatory purposes.
For now, food and drink businesses should be cautious when relying on the brand advertising exemption and carefully consider the overall impression created by advertisements that make use of branding.
As further decisions emerge, advertisers should keep their strategies under review, particularly where campaigns rely on distinctive brand assets, characters or other visual cues that could be associated with a specific HFSS product rather than a wider brand or product range.
About the author
Samantha Woodley, senior associate in the commercial, technology & IP team at Birketts LLP.
