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.
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:
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.
The Food Regulations apply to businesses in England and Wales with over 50 employees (whether full or part-time) that either:
Care homes and educational institutions are exempt from all restrictions. Other businesses are exempt from certain restrictions namely:
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.
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:
That said, these restrictions will not apply to:
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:
That said, these restrictions will not apply to:
Sale of food – online
Businesses must not offer for sale certain HFSS foods:
That said, the restrictions will not apply where:
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:
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":
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.
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.
The ASA announced in November 2021 that advertising of cryptoassets, cryptocurrencies and NFTs was a 'red alert priority issue' for them.
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