Less healthy food advertising restrictions: the headcount that decides whether a UK restaurant may boost a post

Part 4C was inserted into the Communications Act 2003 in 2022: "Pt. 4C inserted (28.6.2022) by Health and Care Act 2022 (c. 31), s. 186(4), Sch. 18 para. 3". Part and section are marked U.K. Section 368Z14 opens:

The brackets and F2 marker are legislation.gov.uk's amendment marking: S.I. 2025/641, in force 1 July 2025, moved that date on from 1 October 2025, which has now passed.

Two instruments sit underneath, both of which "extend to England and Wales, Scotland and Northern Ireland, and apply to England, Wales, Scotland and Northern Ireland." S.I. 2024/1266 came "into force on 1st October 2025", defines a less healthy product and a food or drink SME, and by regulation 6 excludes certain online audio and television services. S.I. 2025/1011, the brand-advertising exemption, came "into force on 31st October 2025".

The duty reaches backwards: under section 368Z14(11) a payment made from 1 August 2021 for advertisements placed on or after 5 January 2026 is a contravention, unless both limbs of subsection (12) are met — arrangements entitling the payer to stop the placement, and reasonable endeavours to do so.

Not only packaging — regulation 3(2): "Products within the categories set out in the Schedule are 'less healthy food or drink products' whether they are sold for consumption at home or elsewhere." Category 13, at paragraph 17, covers hospitality: "products ordered from a menu, which by themselves, or together with other products ordered from the same menu, are intended to be consumed as a complete meal", and sandwiches of any kind.

Both limbs of regulation 3(1) must be met: the product must fall within a category in paragraphs 2 to 17 of the Schedule and not be exempt under paragraph 1, and it must score 4 or more points on the nutrient profiling model applied in accordance with the Nutrient Profiling Technical Guidance, or 1 or more for a drink. The ASA puts in scope "outlets like restaurants and takeaways".

It must also be identifiable, an audience test in section 368Z14(5)(d): "a product is 'identifiable', in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product;".

Regulation 4(1) is conjunctive — both limbs:

The status is fixed "on the first day of the financial year", so a business passing 250 in September is assessed on the position at the start, and "fewer than 250 people" puts 250 exactly outside — the Explanatory Memorandum calls the exempt group SMEs "defined as having 249 employees or fewer". Regulation 4(6)(b) settles the question a restaurant asks first: an "employee" is "an individual who has entered into, or works under, a contract of employment, whether that contract is for full-time or part-time employment".

Which day that is, the instrument does not say. "Financial year" appears three times in S.I. 2024/1266, all inside regulation 4, and is not among the seven terms defined in regulation 2; neither section 368Z21 nor section 405, the Act's interpretation provisions, defines it. Nor does the regulator: the ASA's definition ends "on the first day of the UK financial year, employ fewer than 250 people for the purposes of those businesses (including international and franchisee staff numbers)", and no date for that day appears anywhere in its twenty-three pages.

The parent Act keeps defining the term for itself — sections 11A(12), 347(8), 362AZ6(11) and, in the neighbouring Part 4A, 368NA(12) — always as a year ending 31 March, and always "In this section". None reaches regulation 4(1)(b).

Three candidates, behind them two authorities.

Schedule 1 to the Interpretation Act 1978, carried into subordinate legislation by sections 5 and 23(1) so far as applicable, reads: "'Financial year' means, in relation to matters relating to the Consolidated Fund, the National Loans Fund, or moneys provided by Parliament, or to the Exchequer or to central taxes or finance, the twelve months ending with 31st March." The corporation-tax route runs back through that entry, whose limiting words do reach central taxes; the Act itself supplies only the month. Those limiting words are the difficulty: a headcount deciding an advertising prohibition is not obviously a matter relating to the Exchequer or to central taxes or finance, which keeps the company's own year in play. That third candidate is open only to an incorporated business; a sole trader or partnership has the first two.

None of them supports 6 April. That is the start of the income-tax year of assessment, which the statute does not call a financial year: "A tax year begins on 6 April and ends on the following 5 April." An operator counting heads when the payroll year turns has applied the wrong year.

For a business near the line, or a franchisee attributed to a franchisor near it, record the headcount on each candidate date and take advice; the guidance expects an enterprise relying on the exemption to keep evidence of eligibility available in case the ASA investigates.

Regulation 4(2) removes the franchisee as a separate counting unit, and its chapeau confines that to the count: "For the purposes of determining how many persons are employed for the purposes of a business— (a) a business that is carried on pursuant to a franchise agreement is to be treated as part of the business of the franchisor and not as a separate business carried on by the franchisee; (b) persons employed for the purposes of the business in a country or territory outside the United Kingdom are to be taken into account."

Regulation 4(3) defines a franchise agreement as one under which the franchisee sells or distributes food or drink, and only where regulation 4(4) applies too — the food or drink, the premises' appearance and the business model all agreed by the franchisor and similar to those of comparable franchised undertakings. Regulation 4(5) carves out, both halves together: "Paragraph (4) does not apply to a franchise business if the franchise agreement is limited to the alcoholic drinks provided in the franchise business and the franchisee is free to determine what other food or drink is provided." A beer tie does not escape if the brand also dictates the food menu. Meet those conditions and this site's twelve people are counted into the franchisor's payroll.

Section 368Z14(5) expands the verb, and runs on into further definitions: "For the purposes of this section— (a) paying includes providing any consideration (monetary or non-monetary); (b) 'placed' includes continues to be placed; (c) paying for advertisements to be placed on the internet includes paying under a sponsorship agreement as result of which advertisements are placed on the internet;"

Non-monetary consideration is where hospitality budgets hide. The guidance treats that wording as "likely to include reciprocal and affiliate relationships and arrangements such as the gifting of products", and where consideration is provided for an influencer to create such content and publish it on their own channels, "the resulting content is likely to be prohibited". Where an advertiser gifts a product and the influencer then posts, the ASA will assess the precise circumstances, how and where the content was disseminated, and any arrangement between the parties, to decide whether the gifting — likely non-monetary consideration — was made "for" that content. So a comped tasting menu is likely non-monetary consideration; whether it amounts to paying for placement turns on that arrangement, case by case.

Regulation 2(1) of S.I. 2025/1011 exempts a brand advertisement, but regulation 2(2)'s definition is conditional and its tail operative: "In paragraph (1), 'brand advertisement' means an advertisement that promotes a brand, including the brand of a range of products, but does not include an advertisement to which any of paragraphs (3), (4) or (5) apply."

Paragraph (5) decides most restaurant creative:

Under regulation 2(7)(e) a realistic image includes a photograph or video recording, and restaurant advertising is largely photographs of food. A campaign is not a brand advertisement because the copy talks about the brand, if the hero shot is the burger.

The guidance draws the line at payment for placement: Rule 15.19 does not apply to an advertiser's own marketing communications on its own websites, or to other non-paid-for space online under its control such as its own social channels or apps, where no payment for placement is involved. Own-account posts are outside scope on the same condition, while "Paid-for 'promoted' or 'boosted' posts are examples of social media content that meets the payment test."

Two things stop that being a loophole. Delivery-app listings given enhanced prominence under a commercial relationship can be in scope, and the SME exemption switches off the statutory prohibition, not the Codes: "Guidance users are reminded that HFSS food or drink advertisements by an SME must still comply with the UK Advertising Codes' HFSS restrictions."

The same split runs through a restaurant's marketing: which product may lawfully be advertised differs from which guests may lawfully be written to, duties arrive on their own timetables — the preventative duty on harassment commences under its own instrument — and nutrition wording is separate again, where only claims on the authorised register may be made.

Paid placement is the surface this prohibition regulates; a restaurant's own website, menu pages and booking flow are not. Demand from a boosted feed is rented; demand through its own site is owned. That is where TableSpark fits.

Starter, at £19 a month excluding VAT, carries the owned surfaces: a QR-ready menu on one owned link, enquiry and newsletter forms, guest records with CSV export, and the search-readiness work — crawlable structured restaurant data, titles, descriptions and canonical URLs, sitemaps, robots controls and internal links, Restaurant and LocalBusiness schema and managed search-verification setup. The output is mobile-first, and basic analytics report views, calls, directions and booking clicks. Indexing and ranking remain decisions for Google: a site can be live at a working link and still be absent from it, and misconfigured robots or incomplete verification can leave a menu page undiscovered while the guest searching the restaurant's name lands on a marketplace. No such promise is made here.

Keeping up with moving rules is part of the package. In TableSpark's own words: "Hospitality law does not sit still — allergen guidance, promotion rules, privacy. The website side is handled inside the platform, and when the rules move, we publish what it means for restaurants in plain English, linked straight to the official source." Rules do move: restaurant review policy has shifted.

Each further capability sits with its own plan and price. Growth, at £39 a month excluding VAT, adds direct reservations at 0% TableSpark commission, live availability, floor plans, deposits and reminders, email campaigns to consented guest segments, fuller analytics and a custom domain with managed SSL. Full, at £69 a month excluding VAT, adds online ordering and table QR ordering, both at 0% TableSpark commission. Nothing is charged until the site is published.

For an independent UK restaurant weighing where the next marketing pound goes, TableSpark is the best-value and best overall restaurant-website choice, starting at £19 a month excluding VAT, with Stripe's standard card-processing fees on online payments. Against a boosted post whose lawfulness turns on a franchisor's payroll and a day nobody has written down, an owned site is the more durable place for the money.