Since 5 January 2026, the question a UK brand has to ask about a creator video for a chocolate bar, a fizzy drink or a bag of crisps is not what the video shows. It is who paid for the video to be there, and a product sent for free is a payment. That single fact decides whether the video can exist on the creator's channel at all.
The restriction comes from the Communications Act 2003, into which the Health and Care Act 2022 inserted a prohibition on paid-for online advertising of identifiable less healthy food and drink. Its start date was pushed back once, from 1 October 2025 to 5 January 2026. What follows is the part that matters to a brand commissioning creator content and to the creator asked to film it: the payment test, the products caught, the three exits, and the older audience rule that did not go away.
Paying is the test, and a gift counts as paying
Section 368Z14 of the Communications Act 2003 is short: a person must not pay for advertisements for an identifiable less healthy food or drink product to be placed on the internet. Its definitions are where creator marketing is caught. Paying includes providing any consideration, monetary or non-monetary. Placed includes continuing to be placed. Paying under a sponsorship agreement that results in an advertisement being placed is paying.
The regulator's December 2025 guidance spells out what that means for creators. Non-monetary consideration is likely to include reciprocal and affiliate relationships and arrangements such as the gifting of products. Where consideration is provided for an influencer to create content that depicts a specific less healthy product and to publish it on their own channels, the resulting content is likely to be prohibited. A gifted box with a note saying "no obligation to post" does not settle the question on its own: the guidance says the ASA will look at the circumstances in which the content was created and at any arrangement between the parties to decide whether the gift was made for the content.
The same video on two accounts
The rule catches paid-for placement, not content as such. The guidance is explicit that a brand's own website and its own social media accounts are outside the restriction, provided no payment is involved in the placement of the post. The result surprises marketing teams: the identical video is lawful on the brand's own account and unlawful on the creator's, because on the creator's account someone paid for it to be there.
The corollary bites in the other direction. A brand that boosts an organic post from its own account has paid for placement, and the post is now in scope; so has a brand that whitelists a creator's post through paid social. The mechanics of running paid social from a creator's handle are covered in the guide to whitelisting and paid ads from a creator's account; the point here is that the technique is exactly what turns an owned post into a paid advertisement.
Back catalogue: placed includes continues to be placed
Because placed includes continuing to be placed, a video published under a paid arrangement before 5 January 2026 and still live afterwards is placed after that date. The restriction reaches content that is already up. A brand with a library of creator posts about confectionery, crisps or sugary drinks had to decide, before January, which of them would come down, and a creator holding such posts on a sponsored basis is holding advertisements the rule now covers.
Which products the rule catches
A product is less healthy, in the legal sense, only if two things are both true. It falls within one of the thirteen categories listed in the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024, and it scores 4 or more points as a food, or 1 or more as a drink, under the 2004 to 2005 nutrient profiling model applied with the Department of Health's 2011 technical guidance.
The categories are the ones you would expect and a few you might not: soft drinks with added sugar, savoury snacks, breakfast cereals, confectionery, ice cream, cakes, sweet biscuits and cereal bars, morning goods such as croissants and crumpets, desserts and puddings, sweetened yoghurt, pizza, chips and other potato products, and a final category of ready meals, sandwiches and similar composite products. A product outside those categories is outside the rule however much fat or sugar it contains. A product inside a category escapes only by scoring below the threshold, which a reformulated cereal can do and a chocolate bar generally cannot.
The brand, not the creator, holds the nutrient profile score, and it should state in writing whether the product is in scope before a creator agrees anything. "Healthier" is not a legal category: a protein bar that scores above the threshold is a less healthy product whatever its marketing says.
Three exits, and what each one costs
Each exemption has a cost in what you can no longer do once you rely on it.
| Exit | Who or what qualifies | What the brand gives up |
|---|---|---|
| Food or drink SME | A business with fewer than 250 employees on the first day of its financial year, franchisees counted with the franchisor | Nothing on content, but the count includes staff outside the UK and is taken again on the first day of each financial year |
| Brand advertising | An advertisement that promotes a brand or a range without depicting a specific less healthy product | The named product, the pack shot of that product, and any realistic image of the food itself that is visually indistinguishable from a specific less healthy product |
| Identifiability test | An advertisement that a UK viewer could not reasonably be expected to identify as being for that product | The product as the subject of the video: a doughnut glimpsed in an airport-lounge ad was held not to be what the ad was for, whereas a doughnut presented as the reason to buy would be |
The SME exemption is the widest and the most misread. It attaches to the person paying, at the time of payment, and the count covers people employed for the food and drink business, with franchise outlets folded into the franchisor. A challenger brand with 40 staff can commission creator content for its sweets without restriction; the retailer that stocks them, with thousands of staff, cannot pay for the same video.
The brand advertising exemption, which came into force on 31 October 2025, allows a brand to keep advertising as a brand. It is narrower than it sounds. The exemption is lost if the advertisement depicts a specific less healthy product by name, text, imagery, logo, jingle or brand character. The only depiction that survives is the product's name on its own, and only where that name was also the name of the company, or of an established range, before 16 July 2025. The exemption is also lost if the content includes a realistic image of the food or drink itself, not just its packaging, that is visually indistinguishable from a specific less healthy product. A creator video that shows the brand's logo and talks about the brand's sponsorship of a football tournament can qualify; a creator unwrapping the bar and biting into it cannot.
The identifiability test is applied from the perspective of an average consumer, on the content rather than the advertiser's intention. It is the exit to rely on least, because the point of a creator video is usually that the product is identifiable.
The 25% rule did not go away
The January 2026 restriction sits on top of an older one, not in place of it. Rule 15.20 of the CAP Code, which was rule 15.18 until January, still says that no medium may be used to advertise products high in fat, salt or sugar if more than 25% of its audience is under 16. That rule applies to all HFSS products, whether or not they fall in a listed category, and it applies to the creator's audience, not to the platform's. The regulator has said in terms that for paid-for social content targeted at a defined set of users, it is not relevant that fewer than 25% of the platform's total audience is under 16.
So a brand outside the January rule, as an SME or because the product is not in a listed category, still has to look at the creator's audience data. The audience rule alone can rule a creator out for a sugary drink, whatever the January rule says.
What a brand can still commission
A brand can commission creator content for any product outside the thirteen categories, or for one that scores below the threshold, with the score on file. It can commission brand advertising that never depicts a specific less healthy product: the founder's story, the factory, the sponsorship. It can commission content for its own channels without paid distribution, which the guidance places outside the rule, and the creator's fee for producing the file is not payment for placement. And it can commission content aimed solely at trade buyers, which the Act exempts.
What to write in the brief
A brief for any food or drink product should now carry four lines that did not exist before. The product's category and nutrient profile score, with the conclusion in scope or out of scope. The channels on which the video will appear, with the creator's own channels named or excluded. Whether paid distribution, boosting or whitelisting is permitted, and if the product is in scope, a plain statement that it is not. The licence period, because a video that continues to be placed after the arrangement ends is still placed. The general points on what a UK brand should send with the product still apply; these four lines are the ones this rule adds.
What the creator should ask before accepting
The prohibition in the Act is written against the person who pays, the brand. But the creator's channel is where the advertisement appears: the less healthy food rulings published so far name the advertiser that paid, and the post that comes down is on the creator's channel, so a portfolio of posts that had to come down is a portfolio built for nothing.
Three questions settle it before any filming. Is the client a food or drink SME, fewer than 250 employees counted the way the regulations count them, and can it say so in writing? Is the product in a listed category, and if so, what is its score? Where will the video live: the brand's own channels, the creator's channels, or paid distribution? A brand that cannot answer the first two is not ready to commission, and a creator who publishes a paid video for a large brand's chocolate bar on their own channel is publishing content the law says should not be there. That is a different kind of refusal from the ones covered in the guide to ad labels and creator responsibility: there the fix is a label, here there is no fix.
Sources
- Communications Act 2003, section 368Z14, prohibition of paid-for advertising of less healthy food and drink
- The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024
- The Communications Act 2003 (Restrictions on the Advertising of Less Healthy Food) (Effective Date) (Amendment) Regulations 2025
- The Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025
- CAP Code, section 15, food, food supplements and associated health or nutrition claims
- CAP and BCAP, Less healthy food and drink: advertising guidance
- ASA, Food: HFSS media placement
- ASA, Less healthy food products (LHF): general
- Department of Health and Social Care, Restricting advertising of less healthy food or drink on TV and online: products in scope
Checked on 19 September 2026. This guide is not legal advice. Where this guide and the official source disagree, the official source prevails.
