Exemption from HFSS product restrictions for Ofcom-regulated internet protocol television (IPTV) services

The question

What is the UK Government's proposal for the incoming HFSS restrictions in relation to IPTV advertising?

The key takeaway

Although the final position will be confirmed in response to the consultation, the Government proposes an exemption of Ofcom-regulated IPTV services from the incoming HFSS advertising restrictions under the Health and Care Act 2022 (HCA 2022).

The background

The delayed advertising restrictions for advertising food and drinks high in fat, salt or sugar (HFSS) will come into force on 1 October 2025. See our previous Snapshots (Spring 2022 and Summer 2022) for more detail of the HCA 2022 and its implementation. With the aim of halving childhood obesity by 2030, the HCA 2022 introduced:

• a 05:30 to 21:00 watershed for the TV advertising of HFSS products (Broadcasting Restriction). All services regulated by Ofcom, including all On-Demand Programme Services under the jurisdiction of the UK, are included; and
• a total ban on paid-for online advertising of HFSS products (Online Restriction).

The development

On 12 September 2024, the Government launched a short consultation on implementing the advertising restrictions for IPTV services. IPTV services deliver TV programmes and advertising live over the internet, as opposed to on-demand. They are regulated by Ofcom if they appear on regulated EPGs (electronic programme guides, which are licensed by Ofcom) and therefore subject to the BCAP Code. The HCA 2022 did not specifically address IPTV services and so they may be currently subject to both the Broadcasting Restriction and Online Restriction. As a result, the Government is proposing to introduce an express exemption so that Ofcom-regulated IPTV services, that are subject to the Broadcasting Restriction, will not also be simultaneously subject to the Online Restriction. IPTV services that are not regulated by Ofcom will continue to be subject to the Online Restriction.

The consultation closes on 10 October 2024 and it's expected that any resulting legislation, along with full guidance for advertisers, will be published in good time ahead of the October 2025 coming-into-force date.

Why is this important?

The IPTV services sector has been growing rapidly, and will continue to do so, particularly given the advertising restrictions to be introduced by the HCA 2022. The current proposal will increase the amount of advertising that is only subject to the broadcasting watershed; some cautiously hopeful news for HFSS product advertisers who need to rely on the limited TV advertising space only.

Further, additional IPTV services which are currently unregulated could also become Ofcom-regulated, following a recent consultation by the Department for Culture, Media and Sport (DCMS). This may increase the IPTV services exempt from the Online Restriction, although Ofcom will have the power to take action against any breach of the restrictions by a regulated IPTV service.

Any practical tips?

Businesses looking to place HFSS product advertising on IPTV services, and providers of IPTV services, should be alert to any updates from both consultations. It will be important to keep track of whether a service provider is Ofcom regulated, as this will eventually determine whether or not it is exempt from the Online Restriction. If not already, HFSS selling businesses should review and develop a future marketing strategy, and consider focusing on utilising business owned media, to be ready for the arrival of next year's advertising restrictions. 

Autumn 2024