ASA’s first LHF rulings clarify “identifiable product” test in food advertising

Following its adoption of the new rules on advertising less healthy food (LHF) products earlier this year, the ASA has now published its first rulings under the new restrictions. The rulings offer helpful guidance on what qualifies as an identifiable LHF product as opposed to a merely incidental reference.

Two of the complaints were not upheld. The complaint against German Doner Kebab concerned a sponsored Instagram post by an influencer promoting various menu items, including Inferno OG Chicken, a chicken rice bowl, a doner burrito and junior OG kebabs. The ASA accepted that these products were not high in fat, sugar or salt (HFSS) based on nutrient profiling evidence, so the LFH restrictions did not apply. A glimpse of a Diet Coke at the edge of the frame, which was not mentioned in the ad, was considered incidental (and, in any event, Diet Coke is apparently not an LHF product).

Similarly, the complaint against On The Beach Ltd was not upheld on the basis that the ad did not advertise an identifiable food product. The TV advert showed a boy taking a chocolate doughnut from an airport lounge buffet. However, the ASA agreed that, while the availability of complimentary food was a clear and appealing feature of lounge access, viewers would understand this as illustrating the benefits of lounge access rather than advertising the food itself. The ASA did clarify that the fact that On The Beach is not a food or drink business did not exclude it from the scope of the rules, but the ruling is nonetheless reassuring for businesses who might have been concerned that they need to ensure all advertising was wiped clear of any images of food products.

By contrast, complaints against Iceland and Lidl were upheld.

Iceland’s ad featured identifiable confectionary products (Swizzels Sweet Treats, Chupa Chups laces, Chooee Disco Stix and Haribo Elf Surprises) that were both HFSS and within a regulated category, and therefore classed as LHF. However, other items shown like Iceland’s luxury Aberdeen Angus beef roasting joint, vegetable spring rolls, sticky chicken skewers, and Lurpak spreadable butter fell outside the statutory categories and were not restricted. Sour cream & onion Pringles are not a HFSS product and were therefore not caught by the rules.

In Lidl’s case, a sponsored Instagram post showed a range of Lidl bakery items but focussed in particular on cheese pretzels and pains suisses, both HFSS products within a regulated category and therefore LHF products. The brief and incidental appearance of almond croissants did not amount to advertising an identifiable food product and was therefore permitted.

These rulings confirm that the central question is whether the ad promotes an identifiable food or drink product, while incidental references are allowed. The ASA also confirmed that a product must be both HFSS and within a specified category to be considered a LHF product. The key takeaway, of course, is that diet coke, Pringles and cheese pretzels are apparently perfectly healthy.