High fat, sugar and salt: Online focus and compliance
With companies struggling to get to grips with the new HFSS rules and changes still yet to be introduced, we review the restrictions and exemptions.
The recent introduction of High in Fat, Sugar, and Salt (“HFSS”) legislation under The Food (Promotion and Placement) (England) Regulations 2021 (“the Regulations”), has already created a dramatic impact on the way brands and retailers promote food and drink, along with the need for many businesses to re-develop the way they conduct their business.
Even some large corporates have been struggling to get to grips with the new rules and have been accused of making significant oversights in respect of the rollout of the Regulations.
The Regulations are targeted at making healthier options more attractive, improving people’s diets and reducing children’s sugar intake.
HFSS signifies food and drink products that are high in (saturated) fat, salt or sugar according to the Department of Health’s Nutrient Profiling Model, which is used to calculate a product’s Nutrient Profile Score. Any foods that score four or more, and drinks with a score higher than one, are classed as HFSS products.
Who do the Regulations apply to?
The Regulations apply to businesses in England and Wales with over 50 employees (whether full or part-time) that either sell (in-store or online) pre-packaged HFSS foods to consumers and/or offer free sugar sweetened drink refills to consumers in-store.
As the Regulations are drafted widely, most medium to large retailers are likely to fall within the definition of “qualifying businesses” and be caught by the Regulations.
Educational institutions and care homes are exempt from all restrictions. Other businesses are also exempt from certain restrictions namely:
- restrictions on price and placement do not apply to restaurants (including cafes and takeaways); and
- in-store placement restrictions do not apply to stores with a floor area below 185.8m2.
From 1 October 2022 all HFSS products must be removed from prime locations in stores (e.g. at checkouts or the ends of aisles) and in prominent online locations.
While the in-store physical changes have dominated much press and attention, the new online restrictions have also produced significant impact on the digital marketing and advertising of HFSS products which will come into effect from January 2024.
As mentioned, the Regulations impose strict restrictions on where HFSS foods can appear across channels online. Just as these products are banned from aisle ends, check outs and other prime locations in stores, HFSS are prohibited from appearing on the online equivalents.
Businesses who trade online must not offer for sale certain HFSS foods:
- on the home page;
- where consumers are searching for/browsing certain non-HFSS foods;
- where a consumer is searching for/browsing for distinctly different HFSS foods;
- on a page not opened intentionally by the consumer eg, a pop-up;
- on a favourite products page, unless the consumer has previously purchased the specified food (whether in store or online) or intentionally identified it as a favourite product but in any event, the foods must not be given greater prominence than other non-HFSS foods on a favourite products page; and
- on a checkout page.
However, the restrictions will not apply where:
- consumers are searching/browsing for non-HFSS foods, and HFSS foods are offered as part of a discount offer for multiple items intended to be consumed together as, or as part of, a single meal eg, in a 'meal deal';
- a consumer's search terms includes either the name of the HFSS foods or an ingredient listed on its packaging;
- the business only or mainly sells certain HFSS foods.
The ban on volume price promotions (e.g. ‘buy one get one free’, ‘3 for 2’) of HFSS products, both in-store and online, and free refills on non-pre-packaged sugar-sweetened drinks has been delayed until October 2023. The Government has stated the reason for the delay is due to the “…unprecedented global economic situation and in order to give industry more time to prepare for the restrictions on advertising…”.
Further restrictions, including a 9.00 pm watershed for HFSS food advertising on TV and a restriction on paid-for advertising online are due to come into force in January 2024 under the Health and Care Act 2022.
The Regulations will be enforced by Trading Standards or Environmental Health Officers depending on local arrangements. The guidance states that enforcement authorities will, in the first instance, work with businesses informally or by way of an improvement notice to support and encourage compliance, before pursuing the option to levy a fine.
The breadth of the restrictions (applying to both instore and online sales) provides that if your business is selling or promoting HFSS foods, you will almost certainly need to consider how your business may be affected.
Businesses are best advised to be co-ordinating with their suppliers to identify HFSS products, reviewing their supplier agreements, re-organising their store layouts and online channels, considering what exemptions could apply and whether alternative products could be put in place to fill the gaps, along with seeking legal guidance.
To seek to ensure that our clients are ready for the roll out of the new restrictions, at Weightmans we have been advising franchise businesses and symbol groups on the application of the HFSS Regulations in light of the latest guidance. Please contact our team of regulatory lawyers for further information about how we can assist.