HFSS Advertising: Where does the ASA draw the line? 

For marketers, brand assets are gold dust. A colour, a character, a shape or a seasonal cue can say more than a product shot ever could. But two recent ASA rulings involving M&M’s and Cadbury show that, under the HFSS rules, those same assets can also create regulatory risk. 

The big question is no longer just: “Have we shown the product?” 

It is: “Could the consumer reasonably identify a specific less healthy product from the creative?” 

That is where things get interesting. 

In the M&M’s ruling, the paid-for Instagram ad featured the green and yellow M&M’s characters, together with the M&M’s name. There was no pack shot, no flavour call-out, no product description and no explicit “Peanut M&M’s” wording. From one view, this looked like classic brand advertising. 

But the ASA looked more closely at the creative cues. The yellow character was oval and the yellow colour also aligned with Peanut M&M’s packaging. Taken together, those elements meant the character was not treated simply as a brand mascot, it was treated as depicting a specific HFSS product – Peanut M&M’s. That meant, according to the ASA,  the brand advertising exemption did not apply. 

However, a Cadbury/Costcutter Instagram ad landed differently with the ASA in a ruling published today, even though on the surface it’s hard to tell the distinction between the two cases regarding product identification.  

Yes, Cadbury used powerful brand and seasonal cues: Cadbury branding, a cartoon bunny, colourful egg shapes, “Cadbury Treats” wording and Easter-style creative, which the ASA accepted that consumers could understand the ad as being for Cadbury Easter-themed HFSS products. But when assessing whether the brand advertising exemption applied, the ASA looked at the paid Instagram ad itself and concluded that it did not depict one specific Cadbury product. 

Why? Because the eggs were stylised, block-colour graphics. They were not the speckled pastel look of Mini Eggs. The ASA acknowledged that the majority of Cadbury easter eggs are wrapped in purple foil and that the purple egg in the ad was reminiscent of Cadbury Easter eggs generally, but not one identifiable Cadbury Easter egg in particular. In other words, the creative pointed to the Cadbury Easter range, not a single product. And that’s where the crux of the matter lies… 

…that distinction matters. 

In M&M’s, the combination of mascot, shape and colour took the ad over the line. In Cadbury, the use of abstract seasonal imagery stayed (perhaps only just) on the safer side of brand advertising. 

The Cadbury ruling also gives marketers another important reminder: campaign architecture and nuances in brand advertising matter.  

So, where is the line? 

It is of vital importance to note that this line is very fine and is not drawn based on brand recognition alone. Nor is it crossed simply because an ad uses colour, characters, seasonal themes or familiar brand codes or cues. The line appears to be crossed when the combined effect of the creative points the consumer towards a specific HFSS product, rather than a brand, range or occasion. 

For marketers, the practical lesson is clear: HFSS compliance is not just a legal check at the end of the process. It needs to be part of the creative conversation from the start. But also that nuance and the smaller details matter. 

Ask: 

• Are we using a mascot that consumers can associate with a specific product? 

• Does the shape, colour or design point to a particular variant? 

• Could the ad still be understood as brand-led without the product association? 

• Can we substantiate why the campaign constitutes brand advertising rather than product advertising? 

The good news is that brand advertising is still possible. But the safest creative territory is where the ad builds salience for the brand or range without narrowing the consumer’s mind to one identifiable less healthy product. 

In short: brand assets remain powerful, but under the HFSS rules they need to work harder and be reviewed smarter. 

Because sometimes an egg is just an egg. 
And sometimes a yellow mascot is a Peanut M&M. 

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