Broadcasting Citation, extent, application and commencement 1 1 These Regulations may be cited as the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024. 2 These Regulations extend to England and Wales, Scotland and Northern Ireland, and apply to England, Wales, Scotland and Northern Ireland. 3 These Regulations come into force on 1st October 2025. Interpretation 2 1 In these Regulations— “ the 2003 Act ” means the Communications Act 2003; “accessibility text” mean subtitles and captions intended to make an item accessible to people with disabilities; “ audio item ” means an item— created for the purpose of being listened to, and consisting wholly of sound; “ audio service ” means a service distributing an audio item by means of the internet which— is not a service connected to regulated radio services, within the meaning of regulation 5, and does not contain any visual content except for— accessibility text associated with an audio item, or limited visual images which relate to the provision of the audio service or to audio items available on the audio service; “ the Nutrient Profiling Technical Guidance ” means the guidance with that title published by the Department of Health on 1st January 2011 ; “ the SDIL Regulations ” means the Soft Drinks Industry Levy Regulations 2018 ; “ visual advertisement ” means an advertisement which consists of moving or still images, or legible text other than accessibility text, or a combination of those things. Less healthy food or drink products 3 1 For the purposes of sections 321A(1) (objectives for advertisements: less healthy food and drink), 368FA(1) (advertising: less healthy food and drink) and 368Z14(1) (prohibition of paid-for advertising of less healthy food and drink) of the 2003 Act, a product is a “less healthy food or drink product” if— a it falls within one of the categories set out in paragraphs 2 to 17 of the Schedule to these Regulations, and is not an exempt product within the meaning of paragraph 1 of that Schedule, and b the score for the product when the nutrient profiling model is applied to it in accordance with the Nutrient Profiling Technical Guidance is— i 4 or more points in the case of a product which is not a drink, or ii 1 or more points in the case of a product which is a drink. 2 Products within the categories set out in the Schedule are “less healthy food or drink products” whether they are sold for consumption at home or elsewhere. Food or drink SMEs 4 1 For the purposes of sections 321A(3), 368FA(2) and 368Z14(2) of the 2003 Act, a person is a “food or drink SME” during a financial year if that person— a carries on one or more businesses which involve or are associated with the manufacture or sale of food or drink during that financial year, and b on the first day of the financial year, employs fewer than 250 people for the purposes of those businesses. 2 For the purposes of determining how many persons are employed for the purposes of a business— a a business that is carried on pursuant to a franchise agreement is to be treated as part of the business of the franchisor and not as a separate business carried on by the franchisee; b persons employed for the purposes of the business in a country or territory outside the United Kingdom are to be taken into account. 3 For the purposes of paragraph (2) , a “franchise agreement” exists where one undertaking (“the franchisee”) and another undertaking (“the franchisor”) agree that the franchisee carries on a business activity which includes the sale or distribution of food or drink (“the franchise business”), and paragraph (4) applies to the franchise business. 4 This paragraph applies to a franchise business if— a the food or drink provided in the franchise business, b the internal or external appearance of the premises where the franchise business is carried on, and c the business model used for the operation of the franchise business, are agreed by the franchisor, and are similar to those of other undertakings in respect of which the franchisor has entered into comparable contractual arrangements. 5 Paragraph (4) does not apply to a franchise business if the franchise agreement is limited to the alcoholic drinks provided in the franchise business and the franchisee is free to determine what other food or drink is provided. 6 For the purposes of paragraph (1)(b)— a the employees of a business are the persons who are employed for the purposes of the business; b “ employee ” means an individual who has entered into, or works under, a contract of employment, whether that contract is for full-time or part-time employment; c “ contract of employment ” means a contract of service, whether express or implied, and, if it is express, whether oral or in writing; d persons employed for the purposes of a business include persons who are members of staff of an associated company of the business who also work for the purposes of the business, and for these purposes— i “ associated company ” means a company which is a parent undertaking or a subsidiary undertaking of the company which owns the business, and ii “ parent undertaking ” and “ subsidiary undertaking ” have the same meaning as in section 1162 of the Companies Act 2006 . Services connected to regulated radio services 5 1 For the purposes of section 368Z14(3)(c) of the 2003 Act, a service is a “service connected to regulated radio services” if it is a service— a provided by means of the internet; b which corresponds to a service that is broadcast by a relevant radio service. 2 For the purposes of paragraph (1)(b)— a a service corresponds to a service that is broadcast by a relevant radio service if the majority of the audio items included in the service are broadcast on the relevant radio service at the same time as they are provided by the service; b a “relevant radio service” is a radio service, other than a radio multiplex service (within the meaning of section 258 (radio multiplex services) of the 2003 Act), regulated by OFCOM under section 245 (regulator of independent radio services) of the 2003 Act . 3 A visual advertisement for an identifiable less healthy food or drink product included in a service connected to regulated radio services, which distributes an audio item, is not to be treated as part of that service. Section 368Z14: further exemptions 6 1 Section 368Z14(1) of the 2003 Act does not apply in relation to advertisements for identifiable less healthy food or drink products which— a are included— i in an audio service, and are not visual advertisements, or ii in a television licensable content service, within the meaning of section 232 (meaning of television licensable content services) of the 2003 Act which is a regulated television service, or b are included in an unregulated television licensable content service which— i is not a regulated television service, ii is provided by means of the internet, and iii is a service which corresponds to a regulated television service. 2 In paragraph (1)— a a “regulated television service” is a service which is regulated by OFCOM under section 203 (function of OFCOM in relation to S4C) or section 211 (regulation of independent television services) of the 2003 Act; b a service corresponds to a regulated television service if all the programmes, including advertisements, provided by the regulated television service are provided at the same time on both services. Review 7 1 The Secretary of State must from time to time— a carry out a review of the regulatory provision contained in these Regulations; and b publish a report setting out the conclusions of the review. 2 The first report must be published before 1st October 2030. 3 Subsequent reports must be published at intervals not exceeding 5 years. 4 Section 30(4) (reports on regulatory provision) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulation must, in particular— a set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a); b assess the extent to which those objectives are achieved; c assess whether those objectives remain appropriate; and d if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision. 5 In this regulation, “ regulatory provision ” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act). Andrew Gwynne Parliamentary Under-Secretary of State Department of Health and Social Care 2nd December 2024