At a time of rising prices is it fair to continue to implement the proposed ban on volume sales and offers? It is said that many benefit from promotions such as 3 for 2, buy one get one free, etc. Others claim that making certain “junk foods” accessible by price simply exposes more people to risks from less healthy food. In our previous Law Now we explored some of these issues (Banning Bad - HFSS restrictions and all that junk (cms-lawnow.com). This Law-Now is to bring food business operators up to date on the commencement of the new restrictions and what (so far) has been delayed to October 2023.
The New Regulations in England
On 2 December 2021 the Government passed the Food (Promotion and Placement) (England) Regulations 2021 (Regulations). These Regulations, excluding the price promotion provisions, come into force on 1 October 2022. The Regulations only apply in England.
The Regulations apply to medium and large retailers (with 50 or more employees) that offer prepacked food for sale in store and online, including franchises and symbol group stores.
Price Promotion of Food (Delayed).
The Regulations provide for restrictions on the promotions and placement in retail stores and their online equivalents of certain foods and drinks that are high in fat, salt or sugar (HFSS) or ‘less healthy’ (referred to as less healthy foods from hereon).
A volume price promotion is a multibuy promotion whereby there is an express financial incentive for buying multiple items compared with buying each item separately, or a promotion that indicates that an item, or any part of an item, is free (including 50% extra is free, or “buy one get one free”). The restrictions apply to the promotions on food packaging as well as those communicated to a consumer via other means. Price promotions restrictions also apply to free refills of sugar-sweetened beverages, and consumer-operated drinks machines (if they offer free refills and are placed within a businesses in scope - for example, coffee machines within a convenience store or a forecourt offering sweetened coffee). However, the price promotion restrictions are currently delayed until October 2023 – the Government’s reasoning is the “unprecedented global economic situation and in order to give industry more time to prepare for the restrictions on advertising”.
Restrictions on Placement of Food in Store and Online (October 2022)
The Regulations impose restrictions on businesses in scope from placing less healthy food for sale at specific locations. An example of the restrictions is the prohibition on placing less healthy food in store within two metres of a checkout facility or a designated queuing area, or placing designated less healthy foods in prime locations such as at gondola ends. Restrictions also prevent businesses in scope from offering less healthy foods for sale on an online marketplace in locations such as a homepage and checkout page.
A key point to note is that there is a two-step approach to identifying less healthy products that are in scope. The first step is for businesses to review the list of 13 categories of product set out in Schedule 1 to the Regulations. If your product is on the list then businesses should apply the Nutrient Profile Model (NPM) to establish whether it is caught. However, the Regulations set out a number of exemptions. For example, specialist retailers that only or mainly sell food from a single category in Schedule 1, or a specific type of less healthy food (for example, chocolatiers, confectioners or cake stores) are exempt from the placement restrictions.
Businesses should keep in mind that the restrictions on the placement of less healthy foods have not been delayed and are set to come into force in 3 months.
A failure to comply with the Regulations may result in the issuance of an improvement notice. A failure to comply with the improvement notice could result in a fixed penalty of £2,500 being issued.
Wales and Scotland
The devolved administrations in Scotland and Wales are currently consulting on imposing similar restrictions. The Scottish consultation is open until 23 September 2022 and can be accessed here. The Welsh consultation ends on 1 September 2022 and can be accessed here.
How You can Prepare
The Government has been clear that these changes are intended to address obesity. However, Kellogg’s identified flaws in the Policy and brought a High Court legal challenge without success. Mr Justice Linden stated that “the public health case for the approach under the 2021 Regulations is compelling and I am quite satisfied that it is both proportionate and rational”.
Given the reluctance of the UK courts to intervene in Government policy, businesses should prepare for the implementation of the Regulations by understanding now whether your product is captured by the Schedule 1 categories and, if so, identifying the NPM score of each product to determine whether food is less healthy; considering the practical application (location, shape and size may all be relevant); potentially reformatting both instore and/or online layouts; reviewing policies, procedures and online systems; and updating staff training where necessary.
Please do not hesitate to contact Fiona Carter and Kaleem Mahmood if you have any queries about this publication. You can also register for our Food Safety webinar here.