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Legal changes

New restrictions on unhealthy food and drink promotions and advertisements from October 2022

New regulations set to come into force in October 2022 in England and Wales aimed at tackling rising rates of childhood obesity.

The Food (Promotion and Placement) (England) Regulations 2021 (“the Regulations”) come into force in October 2022 in England and Wales. The Regulations introduce new restrictions on the promotion and placement of certain high fat, sugar and salt products (“HFSS”) in an effort to curb rising rates of childhood obesity. The Regulations sit alongside other recent legislation aimed at providing consumers with greater information, including the provision of calorie information on menus for non-pre-packaged food and drink (in force April 2022).  

Restriction on promotions

From 1 October 2022 medium and large businesses (employing 50 or more employees) will not be permitted to offer multibuy promotions including ‘buy one get one free’ and ‘3 for 2’ offers on pre-packaged HFSS products. The new rules will also apply to offers where a product, or any part of a product, is free. For example, ’50 percent extra free’ and free refill promotions for sugary drinks. Certain promotions, such as half price promotions, will still be permitted as the Regulations are aimed at ensuring that people are not enticed to buy more HFSS products than they were intending to.

Under the new rules, retailers will no longer be able to feature promotions involving HFSS products in prominent locations, such as checkouts, store entrances and the ends of aisles. Free in-store refills of certain sugar sweetened drinks are also prohibited.

For online sales, there will be restrictions on HFSS products being promoted in key locations such as the entry pages of websites, pop-up pages and pages where customers view their basket and proceed to payment.

HFSS food and drink

The Regulations are aimed at products that significantly contribute to children’s calorie intake. They are focussed on 13 specific categories of food and drink including: soft drinks; savoury snacks; breakfast cereals; confectionary; ice cream; cakes; biscuits; morning goods; deserts; sweetened yoghurt; pizza; ready meals; potato chips etc; battered/breaded seafood and meat products. If a food or drink item falls within one of these categories and is classified as less healthy (in accordance with the 2004/2005 Nutrient Profile Model(“NPM”), the food/drink will be ‘specified food’ and will be caught by the Regulations.

Exemptions

The restrictions do not apply to educational establishments and care homes. In addition, restrictions on price promotion and placement do not apply to restaurants, cafes and takeaways. The in-store placement restrictions do not apply to stores with a floor area below 185.8 m2. There are also different rules for specialist retailers who only sell food from a single category (for example sweetshops and chocolatiers).

High-calorie foods which aren't considered ‘junk food’ such as avocados, honeys and olive oil will be exempt.

Preparing for the changes

The Regulations don't take effect until 1 October 2022. However, manufacturers and retailers should begin planning for the changes.  For food and drink producers, the focus is going to be on reformulating products to change the NPM scores. Manufacturers should ensure the baseline nutrition information is accurate and focus on any nutrients that are borderline on the scoring threshold. In addition, retailers need to identify which foods are ‘specified foods’ and may need to reconfigure the layout of their stores and redesign website pages to ensure that they do not contravene the new rules.

There are also other forthcoming changes to limit exposure to HFSS products such as bans on advertising HFSS products before 9pm and the displaying of calories on menus.

Enforcement

Local authorities are responsible for the enforcement of the new rules and they have the power to issue improvements notices where businesses are found to be in non-compliance. In addition, those who fall foul of the law could be issued with a fixed monetary penalty of £2,500. Before issuing such a penalty, a notice of intent must be served on the business.

There will be draft guidance made available to the industry to assist in clarifying how these restrictions will be implemented in practice.  For further information please contact Anna Naylor or Jo Higginson.

For more information on the Food (Promotion and Placement) (England) Regulations, contact our regulatory lawyers.