Food law implications of the new government plan to help tackle UK obesity

To tackle the problem of obesity in the UK, the Government has announced a seven point plan to help tackle obesity in the UK, five of which relate to food law including:

1. The publishing of a 4-nation public consultation to gather evidence on the current ‘traffic light’ label to help people make healthy food choices. It is now over seven years since front of pack nutritional labelling was introduced across the UK and the intention is to revisit the current approach involving traffic-lights and to seek views on "new international examples". There is no explanation of what the international examples will be and it has to be wondered if this may include the current 'Nutriscore system' being considered by the EU which relies on nutrient profiling. If this is one of the international examples under consideration it could help break-down barriers to trade post-Brexit and help companies harmonise the FOP approach in the UK and across the EU.
2. Following on from the consultation in 2018, new legislation requires food businesses, including restaurants, cafes and takeaways with more than 250 employees, to add calorie labels to the food they sell. It is recognised that many business already provide consumers with clear information about calorie content to make informed decisions but nevertheless the government intends to bring in legislation making this compulsory. 
   Consideration is being given to whether this should be on packaging, shelf talkers or menu boards. The changes won't be immediate and timescales will be provided with implementation, however no indication of what these timescales may be has been given as of yet. Although recognition is given to COVID-19, no recognition is given to the changes required in relation to changes for allergen labelling for this sector- another example of lack of connectivity across government departments. 
3. Consultation on making calorie labelling on alcohol compulsory. It is intended that this will apply to prepacked and non-prepacked alcoholic products i.e. by the glass. The consultation is intended to take place by the end of the year.
4. The publishing of the consultation response introducing legislation to end the promotion of HFSS (high in fat, sugar and salt) foods 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. This consultation took place in early 2019 but the responses have not been published. 
   The announcement indicates the responses should be forthcoming shortly, together with draft legislation. As we have previously commented the proposals to restrict price promotions and in store marketing locations and the wholesale change required to the retail environment to implement this change, would have significant impact on both manufacturer and retailer. The imposition of such burdensome (and nearly impossible to enforce) regulation at a time of unprecedented economic and supply chain uncertainty is of huge concern.
5. The intention is to ban HFSS products being shown on TV and online before 9pm and the full consultation response will be published by the end of this year. Legislation will go even further online and a short consultation will be published as soon as possible on how to introduce a total HFSS advertising restriction online. The intention is to implement both TV and online measures at the same time by the end of 2022. Currently, BCAP Code scheduling rule is that food or drink products that are assessed as HFSS may not be advertised in or adjacent to programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 16. In practice, Clearcast apply restrictions to any HFSS TV ads to ensure they don't appear during programmes commissioned for, principally directed at or likely to appeal particularly to under 16s. Programmes such as the X-factor may be watched by the whole family but aren't commissioned specifically for children, etc. which is why HFSS may be advertised during those types of shows. However, the broadcasters monitor the audience breakdown of every programme they broadcast, so if the audience profile shows that it does appeal to an audience below the age of 16 years they will change the classification. Broadcasters will also consider whether the audiences of programmes will change for specific periods, e.g. during the summer holidays. It now appears that there will be an outright ban on adverts with HFFS and will presumably include adverts for golden syrup prior to The Great British Bake Off!

Timings

For the legislation that needs to be consulted upon, it is likely the consultations will take between 4 weeks (generally the shortest time provided) and 3 months (generally the longest time provided). The 2018 Consultation Guidelines recommend that consultation responses be published within 12 weeks, therefore we would not expect the proposals which require consultation to become law before Christmas. However, in the situation where consultations have occurred, such as the promotions and placements requirements, it is highly likely that these laws will be in place before the end of the year- just in time for Brexit.

We will monitor developments carefully and keep you updated as consultations and draft statutory instruments are published.

To discuss any of the matters highlighted in this article, please get in touch with Hilary Ross.