Katie Vickery, head of food law at Osborne Clarke, says the Government's announcement that it intends to ban junk food ads before 9 pm could result in food manufacturers making their food "healthier" in exchange for greater advertising opportunities:

"Junk food is defined legally as food which is high in fat, salt and sugar. Food manufacturers have been working hard over the last few years to reformulate their products and the Government's announcement could well incentivise further reformulation in order to secure advertising privileges.  However, is this blanket ban on so called "junk food" actually using the proverbial sledgehammer to crack a nut?   The question of what makes a food healthy is complex. For example is it more important to reduce fat or sugar? And what about other beneficial nutrients such as fibre or vitamins?  The Government runs the risk of confusing consumers and alienating certain foods that are "healthy" when consumed in moderation."

Katrina Anderson, a lawyer from Osborne Clarke's Food team said:

"Previous restrictions on so-called junk food have been about adverts which target children with unhealthy products. The move to a watershed ban changes this – it is a restriction on advertising to everyone and will have some unexpected results because of the legal definition of "junk food".

"Junk food is legally defined as food which is high in fat, salt and sugar or HFSS food. Although this is well established in law, its use for advertising restrictions can produce unexpected results. Certain foods which might generally be considered healthy in moderation such as cheese or orange juice will be defined as HFSS because of their sugar or fat content as a proportion of hundred grams/hundred millilitres.

"Certain categories of food defined by Public Health England will also be caught by the ban, such as olive bread. The extension of the watershed ban to online is unprecedented and will have huge significance for the food and drink industry who have extensively relied on digital advertising.

"The consultation on alcohol calorie labelling is another example of the shift away from childhood obesity to tackling obesity across the entire population. Although many major drinks manufacturers are voluntarily electing to show calories mandating this is a radical move which will not be popular in the drinks industry.  It is likely that the drinks industry will respond by lobbying for a lifting of restrictions on health claims such as low sugar on alcohol packaging."

Nick Johnson at Osborne Clarke, says the ban on junk food ads online before 9 pm could prove difficult to implement:

"A online watershed for video ads for certain food ads is unprecedented and will impact the online sector much more severely than TV.  Not all online ad platforms have the facility to impose timing restrictions on advertising, so in the short-term this could result in a de facto ban on video ads for HFSS foods for certain platforms. It seems this may be what the government intends since it is also going to consult on a complete ban of junk food advertising online. A UK only ban will bring to the fore old questions about how the UK regulates the Internet which is essentially a global platform".

"Additionally, the type of food which is subject to the ban could mean that food which we might normally consider as healthy adult food, such as cheddar cheese or orange juice, could be subject to these rules because of their sugar or fat content."

If you  are member of the press looking for expert comment please contact Katie, Katrina and Nick directly or contact a member of the PR team.

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