HFSS regulation has dominated conversations across the food and hospitality sector for the past year, and yet the key question we’re asked by brands is: ‘What can’t we do anymore?’

But after the latest Splendid HFSS roundtable with food and hospitality brands, the most interesting discussion wasn’t about compliance but branding.

As the first batch of ASA rulings land, we’re getting a clearer picture of how regulators are interpreting product visibility, influencer activity and brand responsibility – some more successfully than others. But where the most success is to be had is not through loop holes around product but looking beyond product to brand, experiences and insights.

There’s a huge difference between a product being actively promoted and a product existing (fleetingly!) within a broader story. That distinction feels increasingly important because it forces brands to think about what they’re really trying to sell.

Product vs culture

One of the strongest themes from our discussion was the opportunity to shift the focus from food towards the culture and and experiences that surround them.

This is easier for some brands than others – KFC’s use of the bucket as a brand asset central to its comms highlights, in the eyes of our legal team Mills & Reeve, both an opportunity and a challenge. Strong brand codes can help reduce reliance on individual products, but they can also be so closely associated with the product – ie a bucket of tenders – where the distinction becomes harder to make. 

Conversely, the iconic Starbucks seasonal red cup becomes an ownable unidentifiable product. With a menu of compliant drinks as well as non compliant options, provided there’s not a mound of whipped cream on the top the brand can make the argument it’s a compliant tea / coffee.

We discussed the value of teams, particularly in the world of EGC, offering restaurants the opportunity to talk about preparation methods, ingredients, cooking processes, recipes, food heritage and expert commentary, without showing product, building credibility at the same time.

Brands need to prepare for even tighter regulations 

This is something we’ve helped Ginsters do in the last two years, starting to build stories around farming, provenance and ingredients and shifting the focus shifts from consumption to where the range comes from and the people behind it.

With the ongoing consultation around the 2018 Nutrient Profiling Model and the possibility of implementation within a relatively short timeframe, we expect further regulations to follow with More products falling within HFSS restrictions forcing many currently compliant products and categories to have to change their approach. 

So planning solely around today’s regulations creates future risk. Brands should consider pressure-test marketing and innovation plans against both current and future nutrient profiling models. This is going to force wider collaboration across channels legal, compliance, product and marketing teams. The most confident brands have formulated processes that don’t treat compliance as a final checkpoint but build it into the creative process from the start.