The government are set to introduce new measures on High in Fat, Salt and Sugar (HFSS) food including restrictions on volume offers and new rules on placement and promotion.

What is a HFSS food?

HFSS foods are food or soft drink products that are assessed as high in fat, salt or sugar in accordance with the Department of Health nutrient profiling model. Foods scoring 4 or more points and drinks scoring 1 or more are classified as HFSS.

Under the current CAP and BCAP advertising Codes, adverts for HFSS products, or adverts that have the effect of promoting a HFSS product, must not appear in media directed at anyone under 16. If children make up 25% of the adverts’ audience, the HFSS restrictions apply.

What is changing?

TV and online:

The current restrictions on HFSS foods are considered insufficient with additional measures being required to reduce exposure to HFSS advertising.

The government is therefore introducing:

• a 9pm TV watershed on all advertising of HFSS foods;
• a 9pm watershed on all advertising of HFSS foods on on-demand programme services regulated by Ofcom; and,
• a ban on paid for online advertising of HFSS foods.

These restrictions are intended to come into force by the end of 2022 using the Health and Care Bill.

In stores and online:

The government has introduced legislation to end the promotion of HFSS foods by volume (e.g., buy one get one free offers) and by location (e.g., end of aisle in supermarkets, or the online equivalent) both online and in store in England. These restrictions will apply to 13* categories of pre-packed products (as defined in the Food Information Regulations 2014) that are ’less healthy’ and will include restrictions on:

• volume price promotions (e.g., multibuy promotions including e.g., ’3 for the price of 2’, 50% extra free and ’Buy one get one free’);
• placing HFSS foods in prominent locations in-store (e.g., including at store entrances, aisle ends and checkouts);
• promoting HFSS foods in certain locations online (e.g., home pages, pop-ups and shopping basket pages); and,
• offering free in-store refills of non-prepacked sugar-sweetened drinks.

The Food (Promotion and Placement) (England) Regulations 2021 will come into force on 1 October 2022 and will apply to “Qualifying businesses” e.g., those that have 50 or more employees in total (including those as part of a franchise, not just those that work in the store) that sell prepacked HFSS foods to consumers (in store or online) or offer free in-store refills of non-prepacked sugar-sweetened drinks.

There are exemptions for care homes and education institutions and some businesses will be exempt from certain restrictions - e.g., the restrictions on price and placement do not apply to restaurants, cafes, and takeaways. Additionally, the in-store placement restriction does not apply to stores with a floor area below 2,000 square foot (or 185.8 square metres), which takes small format stores and single site businesses outside the rules.

Why?

The new regulations form part of the government's wider strategy to tackle obesity, published in 2020, and follow the government's consultation on the rules, which ended in February last year. The aim is to reduce excessive consumption of HFSS products that can lead to children becoming overweight and obese. Further, the government wants businesses to help people make healthier choices.

What if businesses do not comply?

Failure to comply could lead to enforcement action along with the real potential for reputational damage. Local authorities will enforce the restrictions with non-compliance resulting in an improvement notice setting out the measures required to comply. Failure to comply with an improvement notice is an offence and local authorities can impose a fixed penalty of £2,500. Local authorities are required to publish guidance on how they intend to use fixed penalty notices.

What should businesses do now?

The scope of the restrictions means that if your business is selling or promoting HFSS foods, you will almost certainly need to consider how you may be affected. Businesses should analyse which products are caught by the restrictions and what changes will be required, for example, changes to store layout and/or website, and changes to planned marketing and placement etc., in order to comply.

*The 13 categories of food are: (i) soft drinks, (ii) savoury snacks, (iii) breakfast cereals, (iv) confectionary, (v) ice cream/lollies, (vi) cakes and cupcakes, (vii) sweet biscuits and bars, (viii) "morning goods" (e.g., croissants), (ix) deserts and puddings, (x) sweetened yogurt, (xi) pizza, (xii) chips and wedges, (xiii) ready-to-heat meals, pastry products and battered/breaded seafood and meat products.