If the retailer’s store is greater than 185.8m² and has 50 or more employees, HFSS foods cannot be displayed for sale in a covered external area such as a foyer or lobby, within 2 metres of a public entrance to the main shopping area, checkout or queuing area, unless placed in (but not at the end of) an aisle. Also they cannot be displayed on an aisle end that is adjacent to a main customer route; through the store or on a separate structure (e.g., an island bin, free-standing unit, side stack or clip strip) connected or adjacent to, or within 50 centimetres of, an aisle end. For businesses with 50 or more employees, HFSS products must not be offered for sale as price promotions, i.e. ‘two for one’ or ‘buy two get one free’
The Food (Promotion and Placement) (England) Regulations 2021 (HFSS Regulations)
The legislation to limit the promotion and placement of high fat, salt and sugar (‘HFSS’) products is coming, is your business ready for the changes?
In our previous article, we discussed the forthcoming legislation which is expected to come into force on 1 October 2022 to limit the promotion and placement of high fat, salt and sugar (‘HFSS’) products by retailers and provide greater clarity that is needed to businesses and their application to franchises and symbol groups.
In this update we consider the Government’s recent proposal that they delay the planned ban on "buy one get one free" (Bogof) deals for food and drinks high in fat, salt or sugar as well as free refills for soft drinks, would be put on hold for 12 months, until October 2023.
Also plans to restrict TV advertising of junk foods before the 21:00 GMT watershed and paid-for online adverts are also being paused for a year and will not come into force until January 2024.
In preparation for this impending legislation, what is it a business can do to ensure compliance?
1. Establish if the business needs to comply with the legislation
The answer is yes if the following applies:
- the business has 50 or more employees (the total number of employees is not restricted to England) and:
- it sells (in-store or online) pre-packaged HFSS foods to consumers
- offers free sugar-sweetened drink refills to consumers in-store
- and is not an exempt business.
Remember, if the business is a franchise or part of a symbol group, it may have over 50 employees.
The legislation does not apply:
- if the business has fewer than 50 employees
- to certain educational establishments, military establishments, food provided by charities and care homes.
The restrictions on product placement in key locations do not apply to the following (but they must still comply with the volume price promotion restrictions:)
- retail stores with an area in excess of 185.8 square metres (2,000 square feet)
- the business only or mainly sells certain HFSS foods, such as a chocolatier
2. Find out if your products are within the scope of the regulations
The 15 categories listed in the regulations are a good place to start:
- soft drinks, including yoghurt drinks, milk-based drinks with added sugar and fruit juice with added sugar
- savoury snacks (e.g., crisps and similar potato products)
- breakfast cereals
- ice cream and similar products (includes non-dairy and other alternatives).
- cakes and cupcakes, including cake mixes
- sweet biscuits and bars, including breakfast bars
- morning goods
- desserts and puddings, including mousses
- sweetened yoghurt
- pizza (except bases)
- roast potatoes, fries, wedges, and similar products
- ready meals
- meal centres including breaded and battered products (for example, curries, chicken nuggets, breaded chicken/fish),
- breaded and battered products.
3. Retailers may wish to calculate the nutritional score of products that are within the scope of the regulations
Some retailers are asking their suppliers to provide this information for them. The nutritional score of products is calculated by using the product’s recipe, nutritional information, and the Department of Health’s Nutrient Profile Model. The score of each product will determine if the restrictions apply.
4. Plan on how to move forward
Plan on how to move forward taking into consideration new and existing regulations on HFSS products in the UK.
There may be opportunities to promote alternative ‘healthier’ products in place of HFSS products or scope to re-formulate your products to improve their score.
Businesses must not offer certain HFSS foods as part of a volume price promotion (whether in-store or online). However, the following restriction will not apply to:
- any volume promotions made on packaging up until 1 October 2023
- discount offers for multiple items intended to be consumed together as, or as part of, a single meal e.g., in a ‘meal deal’ or ‘dine in for two’ offers
Businesses should rethink how the food is displayed in the shop, placing low fat, sugar, and salt products, on the end of aisles, within 2 metres of a checkout, near the tills and on promotion, so that customers still feel as though they are getting good deals, but on healthy products.
Remember HFSS foods cannot be:
- within 2 metres of a checkout or queuing area, unless placed in (but not at the end of) an aisle
- in a display at the end of (but not in) an aisle, where the aisle end is adjacent to a main customer route through the store
- in a display on a separate structure (e.g., an island bin, free-standing unit, side stack or clip strip) connected or adjacent to, or within 50 centimetres of, an aisle end
- at any point within the prohibited distance of the midpoint of any public entrance to the store’s main shopping area
- in a covered external area such as a foyer or lobby.
If the business sells online, then it must make sure that its online offering does not offer for sale certain HFSS foods:
- on the home page
- while consumers are searching for/browsing certain non-HFSS foods
- while a consumer is searching for/browsing for distinctly different HFSS foods
- on a page not opened intentionally by the consumer e.g., 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
- on a checkout page.
There are some exemptions when:
- 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 e.g., in a ‘meal deal’
- a consumer’s search terms include either the name of the HFSS foods or an ingredient listed on its packaging
- the business only or mainly sells certain HFSS foods.
We should see this new legislation as a positive, as it promotes health and wellbeing. The food industry will continue to look for new ideas to create new products. These new products can create advances in product and packaging design. There could be advancements in new technology to produce new innovative food products, that are also better for you — some may even have health benefits and lead to increased longevity.
Frequently asked questions
In order to seek to ensure that our clients are ready for the roll out of the new restrictions, our team of regulatory lawyers at Weightmans have been advising franchise businesses and symbol groups on the application of the HFSS Regulations in light of the latest guidance. Please do contact us for further information about how we can assist.