Guide · UK food and drink
HFSS advertising rules explained: brand ads vs product ads after the M&M's ruling
The ASA has now published ten rulings under the less healthy food rules. The pattern is clear: it does not look only at what is in your ad. It looks at everything else you sell.
In short
Under the HFSS rules, a brand ad keeps its exemption only if nothing in it can be identified as a specific less healthy product. The ASA checks your whole range, so a non-HFSS product that looks like an HFSS variant, or a mascot shaped like one, can still break the rules.
What the HFSS rules say
The new CAP and BCAP Code rules on less healthy food and drink ads came into force on 5 January 2026.
They ban ads for identifiable less healthy (LHF) products in three places.
A product counts as LHF under a two-part test. It falls into one of the categories listed in the 2024 Regulations, and it is HFSS under the nutrient profiling model. Both must be true.
The legal basis is the Communications Act 2003 (as amended), the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 and the Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025. The ASA also applies its guidance, Advertising of less healthy food and drink products.
People say "9pm watershed". The TV and on-demand restriction actually runs from 5:30am to 9pm. This is a summary, not legal advice.
- Ofcom-licensed TV, 5:30am to 9:00pm.
- Ofcom-regulated on-demand services, 5:30am to 9:00pm.
- Paid-for online ads aimed mainly at UK users, at any time.
Brand ads vs product ads
The rules restrict ads for identifiable LHF products. Brand advertising is exempt. The question in every case is whether a specific LHF product can be identified.
The ASA guidance, published in December 2025, says an ad loses the brand exemption if it includes a realistic image (photo, video or highly realistic render) of food that is visually indistinguishable from a specific LHF product.
If you show an unpackaged item from a range where healthy and less healthy versions look alike, you need to make clear it is the non-LHF version. A range includes flavour variants. It does not include products that differ only by pack size or format.
Brand characters that represent a specific LHF product also lose the exemption. That is what caught Mars. This is a summary, not legal advice.
What the ASA decided about M&M's
On 8 July 2026 the ASA published six LHF rulings. One was a paid Instagram post for M&M's, seen on 9 January 2026, with the text "For a truly unique event" and "Visit mms.com". A green round M&M character and a yellow oval one sat around an ampersand. Bite Back complained.
Mars argued there was no packaging, no product image and no flavour reference. The characters were long-established mascots, so this was brand advertising.
The ASA split the ad into parts. Every M&M's variant is HFSS and in the confectionery category.
The ASA found a breach of CAP Code rule 15.19. The ad must not appear again, and Mars must not use brand characters that depict specific LHF products in future. Mars said it had complied promptly.
Marketing Week notes that 3 of M&M's 7 characters look oval. They may in effect be unusable in UK online ads or pre-9pm TV.
- The name and logo were fine, because "M&M's" is not the full name of one specific LHF product.
- The green round character was fine. Round M&M's cover several variants: chocolate, crispy, cookie dough, salted caramel and minis.
- The yellow oval character was not. In the ASA's words, quoted by Just Food: "because of their distinct shape, the oval M&M's characters… depicted Peanut M&M's".
Why a non-HFSS hero product is not enough
Many brands assumed that featuring a healthy product kept them safe. It does not, on its own.
When the product in an ad is not named, the ASA will scrutinise the advertiser's wider product range to see whether any LHF product looks the same. The exemption fails if the image is indistinguishable from an LHF product, even if it is not in fact an image of one.
The comparison is made against your own menu and website images. Shoosmiths' advice is simple: if you show a specific product, name it in the ad.
The July cases show the test working both ways.
- Domino's, not upheld: Vegi Supreme on classic crust is non-HFSS. Stuffed and thin and crispy crusts are LHF, but the classic crust looked different.
- Papa John's, not upheld: the Garden Party pizza shown is non-HFSS. The HFSS version comes in a different size with a different slice count.
- Uber Eats / Burger King Whopper, not upheld: the Whopper looks identical to the plant-based Whopper, but both are non-HFSS.
- KFC, not upheld: every product shown was non-HFSS, and chicken shown frying counted as food being prepared, not a product you can buy.
- Morley's, upheld: burgers, nuggets and wings that are LHF were shown clearly in Instagram meal deals.
What the April rulings added
The first four rulings came out on 15 April 2026. Two lessons stand out.
Other foods do not dilute an LHF product. Prominence counts more than intent. Fleeting items can be ignored, and evidence wins cases.
- Iceland, upheld: banner and display ads on the Daily Mail website showed confectionery. Unrestricted foods in the same ad did not save it.
- Lidl NI, upheld: an influencer Instagram post featured a pretzel (not LHF) and a pain suisse (LHF). Lidl said it was about the brand. Because the products were prominent, the ASA treated it as a product ad.
- German Doner Kebab, not upheld: the advertiser supplied nutrient calculations showing the products were not LHF. A brief Diet Coke was treated as incidental.
- On The Beach, not upheld, but a reminder that non-food advertisers can be caught if their ads include LHF products.
Checklist before your next campaign
Run this on every food or drink ad going into paid online, or onto TV and on-demand before 9pm. This is a summary, not legal advice.
The ASA publishes rulings every Wednesday. Read them. The rules are being defined case by case.
If you want rules like these checked on every draft as house rules, that is how Ziild CMO works: it builds the copy, checks it against the brand's rules, and asks for one yes before anything goes live.
- Classify every product shown or mentioned: listed category, and HFSS? Keep the nutrient calculations on file.
- Check placement: paid online is always restricted; TV and on-demand from 5:30am to 9pm.
- Compare any unpackaged product with every variant in your range as shown on your menu or website: crust, bun, filling, topping, size, slice count.
- If an LHF variant looks the same, name the non-LHF product on screen or pick a different hero.
- Audit brand characters and assets. Does any shape or colour belong to only one LHF product?
- Check the brand name and logo are not the full name of a single LHF product.
- Keep any LHF items in shot genuinely incidental and fleeting, not mentioned or featured.
- Brief influencers and partners. Their paid posts count, as Lidl found.
Questions people ask
When did the HFSS rules come into force?
The CAP and BCAP Code rules on less healthy food and drink ads came into force on 5 January 2026. This is a summary, not legal advice.
Does the 9pm watershed mean I can advertise HFSS products online after 9pm?
No. The 5:30am to 9pm restriction applies to TV and on-demand. Paid-for online ads aimed mainly at UK users are restricted at any time.
If my ad shows a non-HFSS product, is it automatically allowed?
No. If the product is not named, the ASA checks your wider range. If it looks indistinguishable from an LHF variant, the brand exemption fails even though the product shown is not LHF.
Can I still use my brand mascot?
Yes, as long as it does not depict a specific LHF product. The ASA allowed M&M's round character, which covers several variants, but not the oval one, which it found depicted Peanut M&M's.
Do influencer posts count?
Yes. In the Lidl NI case an influencer's Instagram post was treated as an ad for the prominent products in it, one of which was LHF.
Sources
- ASA ruling: Mars Wrigley Confectionery UK Ltd
- ASA advice: Less healthy food products (LHF): general
- ASA rulings page
- ASA ruling: Iceland Foods Ltd
- ASA ruling: Lidl Northern Ireland Ltd
- ASA blog: From principle to practice
- Browne Jacobson: ASA less healthy food ad rulings so far
- Just Food: M&M's infringes UK advert rules
- Freeths: A cartoon M&M is a less healthy food
- ESM Magazine: UK regulator rules against Mars over M&M's Instagram ad
- Grocery Gazette: Mars Wrigley M&M's ad banned
- The Grocer: What the latest ASA HFSS rulings mean for brands
- Marketing Week: M&M's brand character and LHF ad rules
- VideoWeek: Takeaways from the ASA's first rulings on junk food ads
- Bakery & Snacks: How the ASA is interpreting new less healthy food rules
- Yahoo (via Just Food): M&M character infringes UK rules
- Lewis Silkin: ASA issues final guidance on less healthy food advertising
- Shoosmiths: Key lessons from the ASA's less healthy food rulings
- Mills & Reeve: ASA provides clarity on the brand exemption
- Lewis Silkin: ASA serves up a healthy selection of rulings
- Retail Gazette: ASA makes six new less healthy food rulings
- Practical Law: first LHF rulings
- Mills & Reeve: ASA rules on identifiability test
- Lewis Silkin: ASA rules doner kebabs are not less healthy foods
- Gowling WLG: A first taste of the ASA's less healthy food rulings
Written by the Ziild machine from the sources above and approved by Pasi before publishing. Spotted an error? pasi@ziild.co.uk