Restrictions in promotions of HFSS foods from April 2022

The Queen’s Speech Queen’s Speech promises change for food businesses (igd.com) on 11^th May listed a number of new government bills to support pandemic recovery. It particularly highlighted the government's obesity strategy proposals that are now confirmed to be on track to become legislation.  This includes a wholesale restriction on the advertising and promotion of 'HFSS' foods under the auspices of 'health living'.  'HFSS' products are food and soft drink products that are high in fat, salt or sugar as identified using nutrient profiling.  The Department of Health 2004 to 2005 Nutrient Profiling Model is likely to be used to define whether a product is HFSS Microsoft Word - Nutrient Profiling_DH template.doc (publishing.service.gov.uk).  Alcoholic drinks are not included in as they have their own prescriptive requirements for marketing.

A summary of the points legislation outlined in the Queen's Speech concerning promotions of HFSS foods is as follows:

'Healthy living'

• Health and Care Bill – This will include measures to ban advertising for specified high fat, salt and sugar (HFSS) foods before 21.00h on TV and at all times online.
• The Calorie Labelling (Out of Home Sector) (England) Regulations 2021 -  legislation will require foodservice businesses employing more than 250 people to mark products with calorie information.
• Promotions – The government confirms that plans to restrict promotion of HFSS foods will be given effect from April 2022.

The Government has therefore stated it will restrict the promotions on HFSS food and 25 drinks in retailers from April 2022. This is likely to concern end placement of HFSS food and drink items at store entrances, checkouts and end-of-aisles in the retail sector excluding small businesses (ie in stores over 2,000 sq ft) and potentially specialist stores and are also likely to include volume price restrictions for HFSS foods. The consultation on this closed on 22 February Restricting promotions of products high in fat, sugar and salt: enforcement - GOV.UK (www.gov.uk)

The Health and Care Bill will include measures to ban HFSS food adverts pre-9pm watershed on TV and for a total ban online. Restrictions are therefore likely to include online pages (e.g. Online restrictions will include homepages of a retailer’s website or grocery page, landing pages when the customer is browsing other categories of food and pages where customers view their shopping basket or proceed to payment. The restrictions are likely to only apply to pre-packed food and drink so, for example, pre-packed cakes would be caught but not those baked in store.) Information will be restricted to facts such as price, ingredients and nutritional content. Paid for displays, text messages, web searches for HFSS are likely to be prohibited. Again reference is made to this not applying to smaller independent producers but further detail on how this may be defined is awaited. 

Calorie information will need to be displayed at the point of choice for the customer, such as physical menus, online menus, food delivery platforms and food labels under The Calorie Labelling (Out of Home Sector) (England) Regulations 2021 (legislation.gov.uk)  There are certain exemptions for particular foods and qualifying establishments.  A more detailed summary update on this may be found here Mandatory calorie labelling for 'Point of Choice' in cafes, restaurants and takeaways - Mills & Reeve: Food Law (food-law-blog.co.uk)

See government update provided here Promotions of unhealthy foods restricted from April 2022 - GOV.UK (www.gov.uk)

An overview of the proposals for the Obesity Strategy can be seen here Tackling Obesity Strategy – Range of proposed restrictions reviewed to date - Mills & Reeve: Food Law (food-law-blog.co.uk)  

Criticism of these proposals have included the lack of any significant decrease in calorie consumption, the broad-brush approach affecting all HFSS foods, including those which provide particular nutritional value such as cheeses, and the lack of any real incentive for business to reformulate if these wide-ranging restrictions are to be put in place.  It is stated that this will likely be simply an additional regulatory burden for the food sector and a severe curtailment on the ability to market a large amount of foods that could make up a perfectly healthy overall diet.

Nevertheless, based on the proposed timeline it is recommended that the food sector prepares now for how these new restrictions will impact their business.