17th January 2023
In 2022, we published several articles setting out the ramifications of the Food (Promotion and Placement) (England) Regulations 2021 (SI 2021/1368) (the Regulations). The Regulations provide for restrictions on the promotion and placement in retail stores and their online equivalents of certain foods and drinks that are high in fat, salt or sugar (HFSS). However, since publication of the Regulations, there have been several delays to the start date of the restrictions, and also a (unsuccessful) judicial review to their legality which has led, understandably, to some confusion as to which provisions are in force. This article sets out which HFSS restrictions are currently in force and the proposed start date of others.
The restriction of HFSS products by location came into force on 1 October 2022. The Regulations ban the promotion of HFSS foods by their placement in key locations (store entrances, aisle ends and checkouts) when retail stores are over 185.8 square metres (or 2,000 square feet) and the equivalent key locations online. These restrictions apply to medium and large businesses (with 50 employees or more). Failure to comply with regulations may result in a business being issued with an improvement notice and subsequently a fixed monetary penalty if compliance is not achieved as required. You can read the most recent guidance here.
Enforcement of the regulations is down to trading standards or environmental health officers depending on local arrangements. The trading standards organisation, CTSI, has said that its enforcement approach will be “graduated and proportionate”. David Pickering, the lead officer for food, said “While these regulations are seen as an important public health measure, it will be for local trading standards services to liaise with their public health teams and adopt an approach that is in keeping with the public health priorities in their area.”
The restriction of HFSS products by volume price, which was due to come in on 1 January 2023, is expected to come into force on 1 October 2023. The Regulations ban the promotion of HFSS products through multi-buys such as buy-one-get-one-free. Government has faced strong pressure from the food and drink and advertising industry to shelve the plans, which they claim will hit companies and consumers already struggling in the cost of living crisis. However, Government is currently still holding firm on the plans to introduce the restrictions in the autumn.
A ban on adverts for HFSS foods before 9pm and a sweeping ban on HFSS advertising online was due to come into force on 1 January 2023. However, Government announced in June that the plans were being delayed to January 2024 and then in December 2022, the policy was delayed further, and is now proposed to come into force in October 2025.
Alongside the announcement of the delay, the Department of Health and Social Care, in conjunction with the Department for Digital, Culture, Media & Sport, launched a consultation introducing the required secondary legislation. The consultation states that Government has formulated its final policy for introducing such advertising restrictions and is now seeking views on the draft Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2022 to accompany the primary legislation. The deadline for responses is 31 March 2023.
Although several parts of the Regulations have been delayed, the placement rules (in store and online) relating to HFSS foods came into force on 1 October 2022 and it is important that these are complied with. If you need any help understanding the Regulations and how they apply to your business, just give Richard Naish or any of the other members of the Food and Drink team a call.