The Scottish Government yesterday (6 July) published its latest consultation on high fat, sugar and salt (HFSS) foods, postponed from 2018 due to the pandemic. The objective is clear: tackling Scotland's poor diet and growing obesity problem. Broadly, the intention is to restrict buy one get one free – BOGOF – promotions, but also three for two offers, meal deals and point of sale/price promotion bins of such foods, particularly adjacent to till points, where shoppers are more susceptible to impulse buying.  

What foods might be affected by HFSS restrictions?

The Scottish Government wants to drive behavioural change in purchasing choices. The key question is how extensive the restrictions should be. The options for restriction (in order of increasing severity) are:

1. discretionary foods, such as biscuits, crisps and puddings; 
2. discretionary foods extending to ice cream and dairy desserts; 
3. as above but including ready meals, pizzas and cereals (mimicking the approach already committed to in England from October 2022); or 
4. all of the above extended yet further into cooking sauces, flavoured noodles and the like.

Many manufacturers have made significant strides on product reformulation in anticipation of regulation in this area but many well known products contain high hidden levels of sugar and salt. In the English High Court this week Kellogg's lost its challenge to the categorisation of certain products (Crunchy Nut Cornflakes and Fruit ’n Fibre) as HFSS despite its argument that once milk was added the total volume of the bowl of food reduced the level of HFSS as a proportion. The court dismissed this – adding milk, however good for you, did not alter the characteristic of the foodstuff which had to be regulated according to its composition as sold, not consumed.  

Might there be different HFSS rules in Scotland from England?

No one can seriously argue against the importance of tackling poor health and obesity, particularly childhood obesity, in the UK and perhaps particularly in Scotland. Care will be needed to ensure not only that a sensible approach adopted, with evidence from respondents informing the policy, but so far as possible a uniquely Scottish solution is not devised to what is visibly a UK-wide problem. If different approaches from England are adopted in Scotland this divergence will add, however incrementally, to the cost of doing business in Scotland for national retailers, as price promotions will need to be devised differently north and south of the border. Manufacturers also may seek to reformulate product in response, and will need to determine how far they will modify their product range particularly if the final Scottish measures are more restrictive than those in the remainder of the UK.  

Manufacturers and retailers have coped with differential arrangements in the context of minimum alcohol unit pricing in Scotland, so the difficulty should not be insuperable. The changes may, however, give rise to further pressure on household budgets. If popular items can no longer be sold as part of three for two or BOGOF deals, it will result in an unwelcome additional cost in the consumer’s weekly shopping basket. 

The consultation document invites reactions by 23 September 2022. You can access the consultation at this address: Consultation on Restricting Promotions of Food and Drink High in Fat, Sugar or Salt (www.gov.scot).