Promotion and placement of HFSS foods – what is the current situation?

12th May 2022

Restrictions on the sale of pre-packed foods that are high in fat, sugar and salt (HFSS) have been on the agenda for several years and on 2 December 2021, the Food (Promotion and Placement) (England) Regulations 2021 (the Regulations) were made. The Regulations are due to come into force on 1 October 2022 and place restrictions on the promotion and placement of certain foods. You can read our previous article here which sets out the details of the Regulations.

On 6 April 2022, the Department for Health and Social Care issued detailed guidance for businesses and enforcers on how to interpret the Regulations. The guidance clarifies issues in the Regulations including:

• Products in scope.
• How to assess whether franchisees and in-store concessions are in scope for the rules.
• The territorial application of the rules.
• Best practice, for example, a display of specified food that is not prepacked (such as loose bakery items) in a restricted location would be permitted, but would not be considered best practice.
• Aspects of the volume price promotions restrictions; for example, a promotion linked to loyalty scheme points is in scope, as are multipacks which compare the multipack price with individual packs, such as “six for the price of four”.
• How the location restrictions apply, both in-store and online.
• The enforcement process and the Advertising Standards Authority’s role in relation to the online promotion restriction.

Despite publication of the guidance, research has shown that almost half of all food businesses are not prepared for the implementation of the Regulations. According to Food Manufacture, research has shown that 43% of businesses interviewed felt unprepared for the new legislation while 70% said that they were not aware that volume promotions would be banned. A further 20% said they were unaware of the legislation altogether, while just one in three businesses had assessed their products ahead of the legislation taking effect.

With the Food and Drink industry still recovering from the pandemic coupled with the war in Ukraine, Brexit and the spiralling cost of living, it is perhaps unsurprising that the Food and Drink Federation has recently called on Government to delay implementation of the Regulations. It has been suggested that a delay of a year would give more time to solve some of the huge issues facing retailers and suppliers, from confusion over the Nutrient Profile Model and what products are in and out of scope, to the real problems facing smaller, less resourced stores.

Finally, the launch of a legal challenge to the Regulations by Kellogg’s may turn out to be the most significant road block yet. The Kellogg’s legal challenge takes issue with the application of the nutrient profiling model within the Regulations, which works like a virtual set of scales and calculates the nutritional value of a food by weighing up elements such as protein and fibre against salt and saturated fat. Kellogg’s lawyers argue that the application of the formula should be changed because it does not take into account the nutritional value of milk which is invariably added to the cereal. Tom Hickman QC, counsel for Kellogg’s, insists that the Regulations are skewed because they do not consider how cereals are actually consumed. In effect, cereals are being wrongly assessed under the new rules in their ‘dry form’.

WM Comment

At the moment we have to work on the assumption that the restrictions on the promotion and placement of HFSS foods will come into force later this year even though at the time of writing there are fresh reports of a potential Government u-turn. If these Regulations affect your business, now is the time to understand the implications and get prepared. It may be the case that a reformulation of the product may be the best course of action and that will obviously take a significant amount of time.