On 2 December 2021, the government passed the Food (Promotion and Placement) (England) Regulations 2021 (SI2021/1368) (Food Regulations), which place restrictions on the sale (both in store and online) of certain food and drink high in fat, sugar and salt (HFSS and HFSS foods).
The law is targeted at making healthier options more attractive, improving people’s diets and reducing children’s sugar intake and will apply from 1 October 2022
There are also wider rules around advertising HFSS foods, for example TV and online advertising restrictions for HFSS foods. We do not delve into this here, but please get in touch with one of our food law experts if you would like to discuss this.
How did we get here?
On 25 June 2018, the government published chapter 2 of the Childhood Obesity Plan, outlining its intention to ban the promotion of HSFF foods by location and price.
Between 12 January and 6 April 2019, the government launched a consultation, requesting responses on:
- which businesses, products and types of price and location promotions should be in scope of the restrictions
- how HFSS products should be defined
- how the proposal should be implemented.
On 28 December 2020, having considered 807 responses, the government confirmed its intention to go ahead with introducing legislation restricting the promotion of HFSS foods by price (volume promotions) and location (checkouts, end of aisles and store entrances) in medium and large retailers that sell food and drink.
Between 28 December 2020 and 22 February 2021, the government consulted on how compliance should be investigated and achieved; and views on penalties. On 21 July 2021, having considered 73 responses, the government confirmed its intention to lay secondary legislation before Parliament by July 2021.
On 2 December 2021 the government passed the Food Regulations – scheduled to come into force from 1 October 2022.
Who is caught by the new rules?
The Food Regulations apply to businesses in England and Wales with over 50 employees (whether full or part-time) that either:
- sell (in-store or online) pre-packaged HFSS foods to consumers
- offer free sugar sweetened drink refills to consumers in-store.
Care homes and educational institutions are exempt from all restrictions. Other businesses are exempt from certain restrictions namely:
- restrictions on price and placement do not apply to restaurants (including cafes and takeaways)
- in-store placement restrictions do not apply to stores with a floor area below 185.8m2.
What types of foods are captured by the rules?
The rules are focused on 13 categories of food. These are essentially soft drinks, savoury snacks, breakfast cereals, confectionary, ice cream/ice lollies etc, cakes and cupcakes, sweet biscuits and bars, "morning goods" such as croissants, deserts and puddings, sweetened yogurt, pizza, crisps / chips, ready-to-heat meals, pastry products and battered/breaded seafood and meat products.
What are the restrictions?
Volume price promotions
Businesses must not offer certain HFSS foods as part of a volume price promotion (whether instore or online). Volume price promotions include:
- multi-buy promotions eg, 3 for 2, 3 for £10, or buy 6 and save 25%
- promotions indicating an item (or part) is free, eg, 50% extra free, or buy 1 get 1 free.
That said, these restrictions will not apply to:
- any volume promotions made on packaging up until 1 October 2023
- discount offers for multiple items intended to be consumed together as, or as part of, a single meal eg, in a meal deal or dine in for two offers.
Free refills
Businesses must not offer free refill or top-up promotions on certain soft drinks containing added sugar ingredients.
Placement of food – in store
Businesses must not place certain HFSS foods:
- within 2m of a checkout or queuing area, unless placed in (but not at the end of) an aisle
- in a display at the end of (but not in) an aisle, where the aisle end is adjacent to a main customer route through the store
- in a display on a separate structure (eg, an island bin, free-standing unit, side stack or clip strip) connected or adjacent to, or within 50cm of, an aisle end
- at any point within the prohibited distance of the midpoint of any public entrance to the store’s main shopping area
- in a covered external area.
That said, these restrictions will not apply to:
- stores with a floor area of less than 185.8m2
- business which only or mainly sell food certain HFSS foods.
Sale of food – online
Businesses must not offer for sale certain HFSS foods:
- on the home page
- while consumers are searching for/browsing certain non-HFSS foods
- while a consumer is searching for/browsing for distinctly different HFSS foods
- on a page not opened intentionally by the consumer eg, a pop-up
- on a favourite products page, unless the consumer has previously purchased the specified food (whether in store or online) or intentionally identified it as a favourite product but in any event, the foods must not be given greater prominence than other non-HFSS foods on a favourite products page
- on a checkout page.
That said, the restrictions will not apply where:
- consumers are searching/browsing for non-HFSS foods and HFSS foods are offered as part of a discount offer for multiple items intended to be consumed together as, or as part of, a single meal eg, in a 'meal deal'
- a consumer's search terms includes either the name of the HFSS foods or an ingredient listed on its packaging
- the business only or mainly sells certain HFSS foods.
What about enforcement and penalties?
Local food authorities are required to enforce the rules within their area. If a local food authority has reasonable grounds for believing that a person is not complying with these rules, they can issue an 'improvement notice' which, among other things would outline the measures the person must take to secure compliance and time frames for doing so.
Failure to comply with an improvement notice is a criminal offence punishable by a fine. Local authorities can also impose a fixed monetary penalty of £2,500.
Where a local food authority is proposing to impose a fixed monetary penalty, it must first issue a notice of intent to that person specifying, among other things, the amount of the penalty.
28 days from receipt of the notice of intent, the business may either:
- make any "representations and objections" to the local food authority, or
- pay 50% of the penalty, upon which it will be discharged.
If the business has not taken one of the actions noted above within the 28 day window, the food authority will serve a "final notice". In respect of this "final notice":
- If the business made representations or objections within the 28 day time limit it may discharge the notice by paying 50% within 14 days of receipt of the final notice.
- There are certain grounds on which a business can appeal the final notice, for example if the decision was unreasonable or wrong in law.
- The penalty must be paid within 28 days of receipt of the final notice. If the penalty remains unpaid after 56 days or 14 days after an unsuccessful appeal, the penalty amount will be increased by 50%.
Local food authorities must issue guidance about the new penalties, including information on the circumstances in which a penalty is likely to be imposed or not, how liability for the penalty may be discharged, and rights to make representations and objections or to appeal. Local authorities must also consult persons specified in the regulations before publishing or revising guidance.
What does this mean for me?
The new law forms part of the government's wider strategy of tacking obesity. The breadth of the restrictions (applying to both instore and online sales) mean that if your business is selling or promoting HFSS foods, you'll almost certainly need to consider how your business may be affected.
Although the Regulations do not kick in until 1 October 2022 (and in the case of restrictions on volume promotions made on packaging, 2023), businesses should start thinking now about how the legislation will affect them.
For online only businesses, your task may be a little easier: disabling some pop-ups and re-curating displays on your website. For those business with physical premises, unfortunately your task will be a bit more involved and require you to inspect your store layout to the nearest centimetre.
Although some larger businesses, may be able to internalise the threat of a £2,500 fine, the damage to its reputation is sure to be an incentive for compliance. Further, more health focussed legislation is in the pipeline in the form of the Health and Care Bill, which is currently at the committee stage with the House of Lords, a clear indication that the government is focused on achieving its strategy.
So, grab your mouse and/or tape measure, and start preparing! And if you don't know where to start or are hungry for more, please get in touch.
