New regulations put foods high in fat, sugar and salt in the firing line

Last year the Government passed the Food (Promotion and Placement) (England) Regulations 2021 (SI2021/1368) (Food Regulations), which places 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 new rules are set to come into force in October 2022 with additional wider rules imposing restrictions on media and advertising promotions.

When?

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.

Although there are some exemptions including schools and care homes and educational institutions are exempt from all restrictions.

What?

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.

How?

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.

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 such as a foyer or lobby.

Although, 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 such as a chocolatier.

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.

There are some exemptions when:

• 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 next?

The breadth of the restrictions (applying to both instore and online sales) mean that if your business is manufacturing, selling or promoting HFSS foods, you will 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. But for those business with physical premises, the changes will be a bit much greater. Local authorities will be responsible for enforcing the restrictions and they shall be entitled to issue improvement notices to any businesses not adhering to these rules, breach of which may result in a fine.

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If you would like to discuss anything covered in this article please contact Lisa Gilligan or Simon Barker.