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Brand-advertising exemption for “less healthy” food and drink confirmed — what it means, who’s furious, and how ad teams will have to adapt

The UK government has this month put the finishing touches on a controversial carve-out to its forthcoming restrictions on advertising of “less healthy” food and drink: brand advertising will be explicitly exempted from the ban. The regulations were laid before Parliament in early September 2025 and sit alongside the wider advertising restrictions that will prohibit paid-for online ads for less-healthy foods at any time and ban less-healthy food commercials on TV between 05:30 and 21:00 from 5 January 2026 (with industry asked to comply voluntarily from 1 October 2025). The new Brand Advertising Exemption Regulations are intended to clarify a point of law that ministers say was already intended — but they have provoked immediate pushback from public-health groups and renewed scrutiny from advertising regulators. (GOV.UK)

Below is a detailed look at what the exemption actually says, why ministers made the move, how industry and health advocates are reacting, and what the change will mean in practice for advertisers, broadcasters and platforms.

The headline: what the exemption does (and does not) change

The core policy remains: paid-for online advertising of products classed as “less healthy” will be illegal at any time, and TV spots for those products will be prohibited between 5:30am and 9pm. What the Brand Advertising Exemption Regulations add is a statutory clarification: “brand advertising” — adverts that promote a brand rather than a specific less-healthy product — is out of scope of those product-focused bans, provided that the ad does not depict a specific less-healthy food or drink product or products. The government’s consultation response and the SI published in September set out this definition and confirm that the exemptions have been written into law. (GOV.UK)

That sounds tidy on paper, but the devil is in the details: the legislation and government guidance make clear that an ad remains within scope if it “depicts” a specific less-healthy product. The word “depict” is broad — regulators and lawyers note it can cover everything from product names and images to familiar logos, jingles or brand characters used to evoke particular products. The new regulations therefore hinge on fine creative and legal judgements about whether a commercial simply markets a brand or whether, in practice, it signals one or more banned products. Legal briefs have already warned advertisers that common branding techniques could cross the line. (Mondaq)

Why ministers felt compelled to add the exemption

The exemption grew from a political and parliamentary friction point. When the Health and Care Bill and subsequent secondary legislation were debated, ministers insisted the original policy was always intended to stop product advertising targeted at children — not to outlaw general brand building activity. Retailers, food manufacturers and broadcasters argued the original drafting risked sweeping up “brand-only” marketing (ads that promote a company name, logo or general corporate message) even where no specific less-healthy product was shown. That uncertainty generated a wave of industry lobbying and prompted the government to publish an explicit statutory carve-out to reassure advertisers and broadcasters. The outcome document and SI were designed to put that intention beyond doubt. (GOV.UK)

Ministers say the move is procedural — a clarification rather than a policy reversal. The Department of Health and Social Care and Downing Street made clear in parliamentary statements that the public-health objective (reducing children’s exposure to advertising for less-healthy foods) stands, and that the exemption is calibrated to allow legitimate corporate brand messages while still blocking product ads that encourage unhealthy choices. Opponents, however, see the change as a concession to industry pressure that risks hollowing out the policy’s effect. (Financial Times)

How “brand” differs from “product” in the law — and why that boundary is slippery

The new regulations set out a few practical tests to distinguish brand ads from product ads, but they do not make the line impermeable. Key points:

Brand advertising is permitted so long as the ad does not “depict” a specific less-healthy product.
Depicting a product can include naming it, showing its image, or using packaging and other branding techniques (logo, jingle, brand character) that are recognisably tied to that product or product variant. Legal advisers warn that the same logo or jingle used in different contexts may still function to evoke the banned product in viewers’ minds. (Legislation.gov.uk)

Put simply: a cola manufacturer could run a general brand film celebrating community or sustainability and — in principle — stay within the exemption, so long as the creative does not show or name its sugary drink or use obvious packaging shots, product names, or specific cues used in product campaigns. But the safe-to-run creative area is rocky — and advertisers will need to prove to ad-standards bodies or, ultimately, courts that their brand message does not double as a product advertisement. The Advertising Standards Authority (ASA), the Committee of Advertising Practice (CAP) and industry self-regulatory codes will be pushed into the role of interpreter. (ASA)

Industry reaction: relief — with caveats

Unsurprisingly, industry groups greeted the exemption as a win. Trade bodies and digital ad associations argued that excluding brand advertising prevents unintended curbs on legitimate corporate communications (for example, a supermarket’s corporate sustainability film or a beverage company’s brand-building campaign). The Internet Advertising Bureau (IAB UK) and ad-trade organisations framed the move as restoring balance between public health measures and commercial free-speech for brands. They also underlined that broadcasters and platforms need legal certainty to plan, sell and price inventory. (IAB UK)

But industry voices also warned that the exemption is not a carte blanche: creatives will need legal sign-off, and publishers must update their ad-sales processes, targeting filters, and campaign sign-offs to prevent accidental breaches. Agencies and media owners will also face the operational burden of assessing whether a creative is a “brand” or a “product” ad — a non-trivial compliance overhead that could lead to slower campaign approvals and higher legal costs.

Public-health groups: furious and worried it will undermine the policy

Health charities and campaigners were quick to condemn the exemption. Groups such as the Obesity Health Alliance described the change as a weakening of a manifesto promise to “raise the healthiest generation of children ever”, warning that brand advertising is a potent way to maintain product salience and normalise less-healthy foods for kids even when specific products are not shown. Campaigners are particularly sceptical because many brand ads deliberately evoke emotional associations that drive product sales — meaning the public-health impact could be blunted. (Obesity Health Alliance)

Critics also point out that brand ads are often omnipresent — on TV, social media, billboards and sponsorship — and that children are exposed to brand messaging across many touchpoints. Even with strict limits on direct product ads, brand awareness can prime children (and families) to seek out branded products elsewhere. For those calling for stricter protections, the exemption looks like policy captured by special interests rather than an uncompromising step to protect child health. (Obesity Health Alliance)

What regulators will now have to do

The ASA and CAP (the ad-industry rule-makers) had paused parts of their own consultation process while the government clarified the legal position — and now they must rework guidance to operationalise the brand/product distinction for advertisers and publishers. That means:

Defining in practice when a brand’s use of packaging, logo, music or character crosses the “depiction” threshold;
Producing clear templated rules and examples for creative teams and media buyers;
Updating monitoring, pre-clearance and enforcement procedures; and
Training broadcast and digital sales teams to spot borderline ads and reject or request edits. (ASA)

Several legal commentators have already signalled that the ASA’s forthcoming guidance will be decisive. If the self-regulatory body interprets “depiction” narrowly, advertisers will enjoy broader latitude; if it interprets it broadly, many brand ads will need to be rewritten or rescheduled. The ASA’s enforcement decisions and case law will quickly become the practical rulebook.

Practical examples: safe brand ads — and risky ones

To make the implications tangible, consider a few hypothetical scenarios:

Likely OK: A food company runs an ad celebrating its centenary, showing factory workers, corporate history, and the brand logo at the end — with no product packaging, product names, shots of food or jingles tied to specific products. This is likely to sit within the exemption.
Risky: The same company runs an atmospheric TV spot showing a family around a breakfast table, with close-ups of a sugar-topped cereal bowl and the product box in frame — even if no price or call-to-action appears. That would be a product ad and is banned during the protected hours and online.
Borderline: A brand uses a very recognisable mascot or jingle that consumers directly associate with a sugary product; even if the product is not explicitly shown, regulators may treat the advert as an attempt to promote the product indirectly. Legal counsel and ASA precedent will determine outcomes. (Mondaq)

Agencies and in-house legal teams will need to document their creative approvals carefully to demonstrate compliance. Publishers, too, will need to insert extra checks into their ad delivery stacks to block disallowed creatives automatically.

Commercial and political fallout

Politically, opponents of the government’s approach argue the exemption amounts to watering down a public-health policy under industry pressure. Proponents counter that the carve-out prevents unworkable rules that could damage media revenues and chill legitimate corporate speech.

Commercially, the most immediate consequence is operational complexity. Media owners and platforms must update ad-ops rules, and advertisers face the prospect of higher costs for creative legal reviews and campaign sign-offs. Brands that were relying on product-level targeting in the October voluntary compliance window now need to accelerate contingency planning: either rework product creatives to run after 9pm/away from online channels or pivot to brand messages that carefully avoid depiction. (Lewis Silkin)

There is also a potential market-access implication: broadcasters selling premium early-evening inventory will see shifts in demand and pricing as product ads are banned in those slots. That could push some advertising budgets into later dayparts, in-ad commerce formats, or into channels where the rules are clearer.

Enforcement, litigation risk and the path ahead

The ASA will be at the frontline of enforcement and will issue guidance and adjudications that will clarify the boundary over time. But there is also a risk of litigation: public-health NGOs or consumer groups could mount judicial reviews if they believe the exemption unlawfully undermines the statutory purpose; conversely, advertisers might challenge ASA rulings they see as too restrictive.

The government has signalled that the advertising restrictions will come into force on 5 January 2026, and that voluntary compliance from 1 October 2025 is expected as an industry-good behaviour step. Watch for early test cases and ASA adjudications between October and January: those rulings will shape how robust the exemption really is in practice. (GOV.UK)

Bottom line: clarification, not cure — the policy’s effectiveness will be litigated in streets, feeds and courtrooms

The Brand Advertising Exemption Regulations resolve a legal ambiguity — ensuring that corporate brand ads that avoid product depiction can continue. For industry, that is welcome certainty. For public-health advocates, it is a worrying loophole. For regulators and legal teams, it creates a heavy lift: defining “depiction” and policing borderline creativity across broadcast and the complex plurality of online ad formats.

In practical terms, advertisers must now do two things immediately: (1) audit existing campaigns for any product references that fall foul of the new rules and reschedule or re-edit them for appropriate windows, and (2) put robust creative-clearance processes in place so brand messages intended to exploit the exemption are defensible if challenged. The ASA’s forthcoming guidance and early adjudications — and, if they come, court decisions — will determine whether the exemption is a narrow technical fix or, effectively, a loophole that undermines the policy’s public-health goals. (ASA)

Key sources and further reading

Government consultation response & explanatory notes: “Response to brand advertising exemption from advertising restrictions for less healthy food or drink.” (GOV.UK). (GOV.UK)
The Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025 (SI 2025/1011). (Legislation.gov.uk)
Industry reaction and explainer: IAB UK and trade briefings. (IAB UK)
Legal analysis of “depict” and practical risks: Mondaq / law-firm briefings. (Mondaq)
Public-health commentary raising concerns that the exemption could undermine policy aims: Obesity Health Alliance. (Obesity Health Alliance)

What’s already on record: policy, industry, preparatory examples

1. Government policy documents and impact assessments

The UK government published “Advertising restrictions for less healthy food or drink on television and online” guidance (late 2024) under the Health and Care Act 2022 / Communications Act amendments. These set out the ban on paid ads for “less healthy” products being online at any time, and between 5:30am-9pm on TV, etc. (GOV.UK)
In July 2025, the government released a consultation (draft regulations) to explicitly exempt “brand advertising” from the scope of the restrictions, provided that the advertisement does not depict a specific less-healthy product. (GOV.UK)
The regulations define “depict” widely: it can include product names, imagery, audio cues, jingles, etc., or other techniques which could make the viewer reasonably identify a less healthy product. Even packaging or visuals that are associated with specific products are under scrutiny. (GOV.UK)

These show how the exemption is being built into law, along with thresholds and definitions designed to limit loopholes.

2. Industry bodies and trade associations

IAB UK (Internet Advertising Bureau) welcomed the confirmation in May 2025 that brand ads will be explicitly exempt, calling it necessary for “certainty” so brands can plan and invest without fear of inadvertently breaking the restrictions. (IAB UK)
A joint campaign was launched by trade bodies (Advertising Association, IPA, ISBA, IAB UK) to raise awareness of the incoming restrictions, including the brand-exemption and what’s allowed vs what’s not. The campaign is aimed at helping advertisers understand the rules ahead of October 2025 voluntary compliance. (ISBA)

3. Delays and voluntary commitments

Because of uncertainty about how brand advertisements would be treated under the initial legislation, the government delayed the legal enforcement of the restrictions from 1 October 2025 to 5 January 2026. This gives time to consult, clarify the brand exemption in the law, and give the industry notice. (GOV.UK)
In the meantime, many advertisers, broadcasters and trade bodies have agreed to a voluntary commitment from October 1, 2025 to comply with the intended restrictions for product ads (i.e. not to show ads for “identifiable less healthy” products before 9pm or online). But the brand-ads exemption provides legal clarity that certain brand messages not depicting specifics are outside scope. (Wiggin LLP)

Comments and opinions

Here are what different stakeholders are saying — supportive arguments, criticisms, and concerns.

Supportive / industry arguments

Legal certainty: Trade bodies like IAB UK and ISBA argue the exemption removes risk that brand campaigns (corporate branding, CSR, heritage messaging) would be inadvertently caught by the restrictions. They warn brands might have hesitated to run “safe” brand campaigns without clarity. (IAB UK)
Economic risk mitigation: Advertisers, broadcasters, and media companies argue that without brand exemptions, restrictions could damage not just unhealthy product lines but whole companies or sectors whose brands are associated with those products. For example, a long-standing heritage brand (even if some lines are “less healthy”) might lose voice. With explicit brand exemptions, they can still promote non-product attributes. (GOV.UK)
Encouragement to reformulate and promote healthier lines: The policy allows brand campaigns to promote healthier variants in the product range, or non-product attributes, which could push companies to offer better products and highlight them. This is seen as positive from some in the business community. (GOV.UK)

Criticisms / public health / concerns

Potential loopholes and weakening of impact: Health campaigners warn that brand advertising can still prime brand recall and desire, especially among children. Even without showing specific products, brand exposure builds associations. The worry is that this exemption may reduce the intended effect of reducing children’s exposure to unhealthy food signals. [While direct quotes from campaigners are less present in the sources I found, this concern was made in public health commentary around the policy].
Edge cases and “depiction” ambiguity: Because language like “depict” is broad, advertisers will naturally test the boundaries. For instance, could showing packaging without flavor labelling, or showing brand logo, count as depicting? Some fear over-interpretation or legal risks for creatives who think they are brand ads but might be considered product ads. (Lewis Silkin)
Children’s exposure: Even brand-only messages that avoid showing unhealthy products might be very visible (TV ads, sponsorships, billboards). Critics say that regulation on product ads is only part of what shapes children’s food preferences; brand presence is also influential. The exemption does not change that exposure.
Implementation and enforcement difficulty: Regulators (e.g. ASA, CAP) will have to assess many ads for whether they cross the “depict” threshold. That involves subjective and creative judgement. There may be inconsistent decisions early on, or creative risk aversion. Also, the ad approval process may need strengthened clearance practices and legal review, which adds cost and slowdowns. (Wiggin LLP)

Examples and hypotheticals to illustrate what is safe vs what might cross the line

While I did not find many fully published cases of brand ads under the new regime (because it hasn’t been fully active yet), here are illustrative examples based on the guidance and commentary that help show what advertisers / regulators are thinking.

Scenario / Ad Creative	Likely status under the rules	Why / What might be risky
Corporate heritage campaign: A food or drink company shows its founders, its factory, sustainability work, brand logo, tagline, etc., no product shown or named.	Likely permitted under the brand advertising exemption. The ad does not depict any specific “less healthy” product.	It does not identify or show a product; no packaging or flavor; no visual cues that map to a specific less healthy product; it fits “pure brand advertising.”
Brand campaign with “range” mention: A soft drink brand includes its logo, shows cans or bottles generic, but does not name a flavor or variant that is identified as less healthy.	Possibly permitted, depending on how recognizable the product variants are. If the packaging is clearly that of a less healthy product that people would recognise (e.g. red can with a known high-sugar drink), the ad might be challenged as depicting.	The “range” or packaging might serve as a visual shortcut to specific product; regulators may see that as depiction. If audio cues or packaging imagery match too closely to specific less healthy product lines, risk increases.
Celebrity endorsement with product-like imagery without naming: A famous chef or influencer appears with a bowl of sugary cereal (with brand packaging visible but no product name in voiceover), smiling, showing breakfast table.	Likely not permitted: the ad depicts packaging and the bowl of cereal; people will reasonably identify the specific product. This is “depicting” less healthy products.	The rules define “depict” broadly to cover imagery, packaging, etc. So even if no name is spoken, visuals could breach.
CSR or social responsibility messaging: Brand talks about environmental work, community, healthy sourcing etc., and includes brand logos.	Likely permitted, as long as no less healthy product is shown or named and creative does not use cues that map to specific less healthy products.	The message is about the brand, not about specific products. But need to watch: if packaging or product lines are visually invoked, or if audience can reasonably map cues to the unhealthy product, might be risky.

Early Signs & What Ad / Creative Teams Should Be Doing

From what has been published and discussed, here are practices that brands, creative agencies, media owners are beginning or should begin implementing to manage risk and remain compliant, plus early indicators of how things may shift.

Audit existing campaigns planned for Q4 2025 and beyond to check whether creatives include “depicted” less healthy products. If yes, consider editing them, rescheduling to after-9pm slots for TV, or pulling them online where allowed (if policy allows).
Strengthen creative clearance workflows: legal review of ad scripts and storyboards, checking packaging, logos, flavors, jingles, etc., to ensure they don’t stray into depiction territory.
Training and guidelines: Internal and external stakeholders (creative teams, agency, media buying, legal, client marketing) need updated understanding of what counts as depiction. Industry bodies (e.g. IAB UK) are sharing FAQs, doing awareness campaigns. (ISBA)
Preparing fallback / alternative brand messaging for key seasonal campaigns. For example, Christmas food adverts are tricky; brands may need versions of adverts that do not show less healthy food or perhaps show only healthier alternatives or generic imagery.
Regulator interactions: monitoring how ASA and CAP interpret the rules and any early adjudications or rulings. These will set precedents.

What to Watch: Early Case Studies & Litigation to Come

Even though fully fleshed real-world “brand ad under new exemption” cases are not yet publicly adjudicated, some early cases or controversies give clues:

In earlier marketing regulation history, there have been ASA rulings about adverts using brand characters or jingles that evoke unhealthy products, even if those products aren’t named, being considered for possible breach (e.g. old “Coco Pops” case) where brand character associated with sugary cereal was under question. While not under the new rules, such precedents inform how “depiction” and brand association are judged. (The Guardian)
The consultation timeline and source documents note that the legal definition of “identifiable less healthy food product” is based on whether people in the UK could reasonably identify the ad as being for a less healthy product. This suggests future ASA decisions will test audience interpretation, not just technical compliance. (GOV.UK)
Some legal advisers have flagged that brand names that include product names (or strongly iconic packaging / color schemes) may complicate “pure brand ad” status. For instance, if a brand’s name is something like “SugarBlast Inc”, or the visual style is closely tied to the packaging of a less healthy drink, it might be considered depiction even if no product shot or flavor is shown. Such hypotheticals are being discussed in briefs. (GOV.UK)

Implications & Potential Outcomes

From all of the above, here are some likely outcomes / shifts that may emerge as the brand advertising exemption is tested in practice:

More “brand-led” campaigns: Brands will lean more heavily on corporate messages, heritage, values, CSR, tastefulness, lifestyle images that avoid showing food or packaging. The creative style will shift.
Higher creative/legal costs and slower timelines: Because more checking is needed, more variants may be prepared (one version safe for prime-time, another more explicit product version later in the evening).
Possible chilling effect initially: Until regulators provide clear landmark rulings and guidance, many brands may over-comply (i.e. avoid borderline content) to avoid risk, possibly reducing brand visibility for some companies.
Regulator jurisprudence/views on “depiction” will matter: The ASA’s early rulings, CAP guidance, and possibly legal challenges will shape what is acceptable. What seems safe in one case may be rejected in another depending on cumulative cues (visual, audio, association).
Public health campaigners may shift focus: Because brand awareness evades partial regulation, campaigners may call for tighter controls on brand messaging or for the definition of “depiction” to be interpreted broadly. There may be pressure for stricter rules, or push for limiting brand reach in sponsorships, or during children’s programming even if no product is shown.
Seasonal/holiday adverts will be flashpoints: Christmas, Halloween, etc., when food-centric advertising is heavy. Advertisers during those times need to be especially careful, as creative impulses often include product images, packaging shots, flavor visuals. Some brands already warning that they need to remake Christmas food adverts to avoid product depictions. While I didn’t find a published example of one brand actually remaking yet, several trade umbrella groups caution about the need. (ISBA)