First tobacco… now food and drink?

In 1962, the Royal College of Physicians first recommended stricter laws on the sale and advertising of tobacco products. Over the course of the next fifty years, advertising opportunities for tobacco were gradually eroded and then, on 20 May 2016, UK law was changed to prohibit the use of logos, colours and branding on packaging.

With the tobacco industry apparently neutered, public health advocates have turned their attention to tackling obesity. It is easy to see why the food and drink sector should be concerned.

Regulatory activity has increased in areas including the advertising of high fat, salt and sugar foods (HFSS). New broadcasting restrictions limit children’s exposure to advertising that promotes HFSS foods (2017), and the soft drinks industry is now subject to a “sugar tax” (2018). In February 2019, Transport for London banned advertising of HFSS foods on its network which led to the removal of advertisements featuring bacon, butter and jam[1] and strawberries and cream at Wimbledon[2].

The key question is therefore not whether, but when, we will see further regulation of HFSS goods. What does that mean for brand owners of goods in these categories? And what can be done to plan ahead?

Adapting to a more challenging retail environment

Brand owners in the food and drink industry are faced with the following potential issues:

  • Fewer advertising opportunities
  • Reduced recognition among consumers
  • Lower sales volumes
  • Loss of legal rights
  • Diminished brand value

In 2016, leading brands from the tobacco industry challenged the decision to implement tobacco advertising bans[3]. They argued that the legislation effectively eroded their legal rights and therefore was unlawful.

The court rejected the claims of tobacco companies. This decision makes clear that the government has a mandate to severely curtail the rights of a brand owner on public health ground.  It offers little comfort for brand owners of HFSS goods.

Brand owners of HFSS foods should prepare now for the storm ahead.


Established brands with strong consumer recognition will have a comparative advantage under any new regulations of HFSS foods. For start-up brands it will become harder to break into a market because of the reduced opportunities. Creative marketing in new channels could be key for new entrants.

Lower levels of brand recognition among consumers will make it easier for copycats and competitors to encroach on trade mark rights – if they are not adequately protected. That presents opportunities as well as risk.

Brand owners of HFSS foods should act now and:

  • Ensure legal protection is in place across all brands and categories
  • Consider alternative branding for high risk products
  • Adapt branding to capitalise on the equity in established brands

[1] [retrieved 3 September 2019]

[2] [retrieved 3 September 2019]

[3] British American Tobacco (UK) Ltd & Ors, R (On the Application Of) v Secretary Of State For Health [2016] EWHC 1169

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