Tackling Obesity Strategy – Range of proposed restrictions reviewed to date

Summer 2020, the government set out its’ Tackling Obesity’ strategy 

This listed the following proposals:

• introducing a new campaign – a call to action for everyone who is overweight to take steps to move towards a healthier weight, with evidence-based tools and apps 
• working to expand weight management services available through the NHS
• publishing a 4-nation public consultation to gather views and evidence on the current ‘traffic light’ label to help people make healthy food choices
• introducing leg to require large out-of-home food businesses, including restaurants, cafes and takeaways with more than 250 employees, to add calorie labels to the food they sell
• consulting on government intention to make companies provide calorie labelling on alcohol
• legislating to end the promotion of foods high in fat, sugar or salt (HFSS) by restricting volume promotions such as buy one get one free, and the placement of these foods in prominent locations intended to encourage purchasing, both online and in physical stores in England
• banning the advertising of HFSS products being shown on TV before 9pm and holding a consultation on how to introduce a total HFSS advertising restriction online

This follows on from  Chapter Two of the government’s ‘childhood obesity strategy’,  published in 2018. Also, the ‘sugar tax’ or 'Soft Drinks Industry Levy', introduced also in 2018, this provided a differentiated charge depending if drinks were formulated with 5-8g or <8g of sugar per 100ml.  Public Health England has additionally called for voluntary reduction in calories on 7 September 2020, for the eating out of home, takeaway and delivery sector a reduction of 20% and 10% for children’s meal bundles.

There have now been 3 consultations in rapid succession stemming from this Strategy; calorie labelling, front of pack review and restriction in online advertising for HFSS foods. A review is provided below:

1. Calorie Labelling: Out-of-home food businesses, including restaurants, cafes and takeaways with more than 250 employees, to add calorie labels to the food  

The government confirms that in response to the consultation carried out it will introduce mandatory calorie labelling for large businesses in the sector (businesses with 250+ employees)

The policy will apply to any large business (250+ employees) in England where food or drink is prepared in a way that means it is ready for immediate consumption by the person who buys it. Examples of large businesses that will be required to calorie label include restaurants, cafes, takeaways, bakeries and caterers but also supermarkets, entertainment venues e.g. cinemas, or hotels where they serve food in scope of the policy. Workplaces, where the food and drink on sale is provided by a large catering company will also be required to calorie label.

Franchises selling substantially the same food by way of their franchise agreement will be covered by the 250+ employees criteria.  The requirement will also extend to online sales from businesses in scope of the policy including sales from third party takeaway platforms. Third party takeaway platforms, irrespective of the size of their business, will be required to display calorie information on food and drink items sold by businesses in scope of the policy. The responsibility for calculating calorie content lies with the business making the food or drink, and responsibility for displaying calorie information rests with the business through which the food or drink is sold.

Specific exemption include: specific exemptions:

• Education institutions for pupils below the age of 18.
• In-house workplace canteens where the food and drink on sale is solely for the employees of the workplace.
• Health and social care settings where the food is provided solely for patients or residents.

Products to be affected

Calorie labelling will be required on all items a business offers that are prepared for immediate consumption by the final consumer and are not subject to existing pre-packaged labelling requirements. This includes items that are unpackaged (e.g. a meal at a restaurant), prepacked for direct sale (e.g. sandwiches made and packaged on-site), or packaged at the consumers request (e.g. a sausage roll on the hot food tray at a bakery).

There will be certain exemptions which include:

• Temporary items on the menu for less than 30 days.
• Items that typically require further preparation before consumption e.g. uncooked meat, fish and eggs.
• Drinks with over 1.2% alcohol by volume (ABV).
• Loose fruit or vegetables.
• General use condiments where they are added by the consumer.

Calorie information

Calorie information will be required at the point of choice; that is the place in an establishment where customers make their meal choices and prices are displayed. Where menu information is located at several points in an outlet, businesses should provide calorie information at each. Examples of the point of choice would include table menus, menu boards and food labels placed next to food on shelves or display cases. For online businesses, the point of choice would mean any web-page where customers can select the food items they want.

Calorie labels are required to show the number of calories along with a visible declaration referring to the recommended daily intake for an adult woman (2,000 kcal). The precise wording of the declaration is to be set out in regulations and Government guidance.  Under current EU labelling legislation, calorie labelling must refer to energy content as both kilojoules (KJ) and calories.

Timescale

The government indicated legislation to be enacted in 2020 and implemented within the following 12 months. It is uncertain how likely this timetable will be but it shows an impetus to regulate this area.

2. Consultation on Front-of-pack nutrition labels (FOPNL) 

Despite there being no legal duty to display the current 'Multiple Traffic Light' System (MTL), a significant number of businesses, including all major UK retailers, voluntarily displayed the MTL on either all, or a selection of their pre-packed products.

 The consultation looked to maintain and extend the use of FOPNL across the widest appropriate range of food and drink products and achieve the greatest possible consistency in the way this information is presented, in promoting those forms of presentation that best support shoppers in making a healthier choice, however they shop. The consultation reviewed:

• The current Multiple Traffic Light System (MTL) and how that was being used by consumers and industry alike.
• Evidence on international FOPNL systems. It should be noted, at this stage, the consultation was not proposing any changes to legislation or policy governing FOPNL in the UK, but sought views on other international examples to inform only, these included the composite label 'Nutri-score' and Chile's 'Warning Label'.
• Reflecting updated nutrition guidance in the UK's Recommended FOPNL - outline review of new nutrition advice on sugar and fibre.

A summary of responses is awaited.

3. Online restriction of advertising of HFSS foods –

The total restriction of online advertising of HFSS foods has been launched 10 November and runs for 6 weeks. 

Scope

It is proposed the restrictions apply to all online marketing communications that are either intended or likely to come to the attention of UK children and which have the effect of promoting identifiable HFSS products, while excluding from scope:

• marketing communications in online media targeted exclusively at business-to-business. We do not seek to limit advertisers' capacity to promote their products and services to other companies or other operators in the supply chain;
• factual claims about products and services;
• communications with the principal purpose of facilitating an online transaction.

The restriction would include, but is not limited to, for example:

• commercial email, commercial text messaging and other messaging services
• marketers' activities in non-paid for space, for example on their website and on social media, where the marketer has editorial and/or financial control over the content
• online display ads in paid-for space (including banner ads and pre/mid-roll video ads)
• paid-for search listings; preferential listings on price comparison sites
• viral advertisements (where content is considered to have been created by the marketer or a third party paid by the marketer or acting under the editorial control of the marketer, with the specific intention of being widely shared. Not content solely on the grounds it has gone viral)
• paid-for advertisements on social media channels - native content, influencers etc
• in-game advertisements
• commercial classified advertisements
• advertisements which are pushed electronically to devices
• advertisements distributed through web widgets
• in-app advertising or apps intended to advertise
• advergames
• advertorials

Differentiation between online sales and advertising

It is stated that advertisers who use the internet to conduct transactions of their products should be allowed to continue selling their products online. It is therefore proposed any platform whose principal function is the buying or selling of products, including food and drink, is exempt from the proposed restriction. This includes websites, social media channels, apps ‒ or dissociable part of those platforms, including also email, text or push notifications directed to customers who have chosen to opt-in to these communications.

The consultation sets out that companies should be able to make available factual information about their products. Therefore it is proposed that advertisers remain able to feature such information on their own websites or other non-paid-for space online under their control, including their own social media channels.

The consultation considers that factual claims include but are not limited to:

• the names of products
• nutritional information
• price statements
• product ingredients
• name and contact details of the advertiser
• provenance of ingredients
• health warnings and serving recommendations
• availability or location of products
• corporate information on, for example, the sales performance of a product

However, the consultation goes on to address the difficulty and regulatory challenges that may arise from having to make a distinction between factual claims and promotional claims, and the inherently shareable and engaging nature of social media content. It therefore proposes food businesses set controls which ensure that their posts regarding HFSS products can only be found by users actively seeking them on the advertisers own social media page.

Branding

Similarly, any advertisers which sell or promote an identifiable HFSS product ‘or which operate a brand considered by the regulator to be synonymous with HFSS products’ should be required to set controls which ensure that their posts regarding HFSS products can only be found by users actively seeking them on the advertisers own social media page.

Liability

A statutory regulator is proposed, with overall responsibility for the regulation of the restriction, with discretionary powers to take effective action against advertisers who breach the rules, especially in cases of more serious or repeat breaches. The day-to-day responsibility for applying the rules, considering complaints, providing guidance and training material to industry would remain with the Advertising Standards Authority (ASA) with, it is suggested statutory back-stop and civil sanctions such as fines.   Whether other actors in the online advertising ecosystem should have responsibility for advertising that breaches an online restriction via the introduction of further regulations is to be considered.

Overall Commentary

This shows some concerted steps being made, but predominantly at the expense of the food and advertising industry. The provision of additional clear and consistent information to the consumer may be in itself a very good thing, but this would put an additional cost on a beleaguered food and hospitality sector.  Further, obesity is a multi-faceted problem, concerning as it does the need for education and the provision of exercise and sports facilities for all ages, and the positive support of healthier eating options.

Of primary concern is also the premise upon which some of these assertions are based. It is notoriously difficult to individually categorise food as opposed to diets as a whole. The EU stated that Health Claims according to Regulation 1924/2006 should be regulated such that they can only appear on foods that meet a specified nutrient profile (NP). A NP model has been proposed, but is still not agreed by the European Commission some 14 years later.  The UK nutrient profiling model (NPM) was developed by the Food Standards Agency (FSA) in 2004-2005 as a tool to help Ofcom differentiate foods and improve the balance of television advertising to children. The NPM was used by Ofcom when a ban on HFSS food advertisements during children’s programmes came into effect in April 2007. The same model has since been used to restrict advertising on public transport in London (Greater London Authority 2018). 

The new childhood obesity strategy therefore greatly expands and increases the importance of the NPM.  If the government implements its proposals, the NPM will dictate which products can be advertised on television before 9pm, which products can be included in discount deals and which products can be displayed in prominent areas of shops as well as with this latest consultation an outright ban on advertising online of HFSS foods. However, the range of products that will be affected is very large indeed. The Nutrient Profiling Model classifies a vast range of meals and products as ‘less healthy’ this includes raisins, sultanas, most tinned fruit, most yoghurts, nearly all cheese (including half-fat cheese), hummus, most cereal bars, many pasta sauces, salami, ham, butter, margarine.  Foods that may be deemed healthy under the NPM, include: eggs, pulses, fresh fruit, fresh vegetables, unprocessed nuts, raw meat, most rice, most pasta and most milk, bread, muesli and porridge. However, it takes no account of how food is eaten and in what quantities in the overall diet, nor the nutritional requirements of the individual.

The restrictions to be imposed therefore should potentially be based on a more thoughtful model of the sort of foods a healthy lifestyle should include for the particular individual, a promotion of healthier choices and support provided to the food and hospitality industry in any additional requirements for information and signage that may be made of them.