The last few weeks have been full of headlines suggesting that The Food (Promotion and Placement) (England) Regulations 2021, (which in respect of the the placement restrictions are due to come into force on 1 October), might be shelved. As things stand, only a few days out from go live, nothing has been announced, so we assume the change will occur as planned and we know that national retailers and brands alike have invested vast sums to stay compliant and understand the laws.
We already know that promotions restrictions in these regulations have been delayed by a year, as have the sister restrictions in the advertising arena, so it is quite possible that this will also occur here. Yet, with each coming day it seems less likely.
With the Welsh and Scottish governments currently reviewing consultation responses on their own regimes, it's difficult to see that a wholesale U-turn on the English restrictions will be viable long term. Despite the political wavering, it's still necessary for businesses to be on top of which foods are affected as this will impact everything from shop fit-outs, through website structure, to marketing.
HFSS vs "specified food" vs "less healthy"
Despite the widespread references to HFSS foods in guidance and press, the phrase 'foods high in fat, salt and sugar' is absent from the Regulations which restrict the placement and online promotion of 'specified foods' in England. This is because a product may be HFSS but not necessarily a risk factor in contributing to obesity and, in some cases, beneficial or necessary to maintaining a healthy diet. For example: almonds, hummus, cheese and some meats.
'Specified foods' are listed in Schedule 1 of the Regulations and defined as 'less healthy'. The categories listed are broad but more closely linked to products associated with 'junk food' than the definition originally consulted on. A 'less healthy' food is one which scores four or more points in accordance with the Nutrient Profiling Model (NPM). A 'less healthy' drink is one which scores one or more points in accordance with the NPM. Being high in fat, salt or sugar will usually secure a score of four (or one) under the NPM. It only applies to prepacked foods.
'Less healthy' is an uncomfortable definition as it treats all Schedule 1 food as equal. The law applies the same restriction to a boiled sweet (which offers no nutritional value) and to a sweetened yogurt, which although not as useful as an unsweetened yogurt, at least contains calcium, likely some fruit, and is probably fortified with vitamins.
Despite the Guidance including more information about what it says is in and out of scope, the categories are so general that it is likely that disputes will occur on this point in due course. Though, as it is the retailers who are the ones liable they may just choose to play it safe and err on the side of caution and treat products that may be restricted as restricted.
While a superficial review of the list shows that it all appears logical, as you consider specific use cases, it is very easy to see products that could be both in and out of the scope depending on the section you say it applies to. Additionally, the line in the sand around pre-packed food becomes even more arbitrary. As an example, your fantastic bakery selection in store is out of scope, unless you put that doughnut into a box or bag, then that same product is in scope and subject to the restrictions – assuming of course that the baking purist in you does not dispute that a doughnut is a cake (Schedule 1, category 6). If you do, then it may be either a morning food (which includes 'croissants, pains au chocolat and similar pastries, crumpets, pancakes, buns, teacakes, scones, waffles, Danish pastries and fruit loaves'; category 8) or a Dessert or pudding (category 9). If it is not covered by these, then it is not restricted at all…
Therefore, in England specific categories of food are listed and then if a food is in that category it is defined as 'less healthy' under NPM and the restrictions will apply but what about the future plans for Scotland and Wales?
What is restricted?
The new regulations restrict the promotion and placement of specified food in store and online. The restrictions are superficially straightforward but are complicated to apply. As noted above, the government has already delayed the promotions restrictions so only the locations restrictions are due to come into force.
These will be subject to another note as they warrant more detail, but in general they prohibit the placement of specified foods in certain locations in store, such as the end of an aisle of a physical store or 'offered for sale' from the home page online.
The summaries of restricted areas initially appear straightforward but the further detail in the English regulations show that it's not the case in practice. Specified/HFSS food must not be placed:
- within 2m of a checkout facility, unless placed in (but not at the end of) an aisle;
- within 2m of a designated 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 connected to, or within 50cm of, such an aisle end;
- within 15m of the midpoint of any public entrance to the store's main shopping area or √(0.03* α) where α is the store's relevant floor area. So if the store is 185.8 m2 (the smallest size covered by the Regaultions) the prohibited distance is 2.4 m; or
- in a covered external area such as a foyer, lobby or vestibule.
While the language used is relatively straightforward there is a distinct lack of definition that makes applying the rules much more difficult than it would initially appear. It is not always clear what is meant by the locations described for instance, what is an aisle – we would all recognise the formal fixed arrangement but what about a more flexible space? Regarding online/websites, what is meant by 'offered for sale'? We have already helped clients implement these rules, yet more and more such issues have arisen and we expect that to continue for some time.
UK-wide devolution continuing?
While the overall objective is the same, and to date we have only seen consultations from Wales and Scotland, as we have seen in the responses to Covid-19, DRS, single use bags, and many other areas, we will have three variants on a theme.
What may be different?
The categories of food regulated may be different. The English legislation targets foods which were identified as being "of most concern to childhood obesity" which are listed in Schedule 1 of the 2021 Regulations. This is just one of four options set out in the Scottish consultation.
Scotland could have a narrower scope of affected products e.g. 'discretionary food only' (essentially confectionery, snacks and puddings but not ice-cream) or a much wider range of affected products e.g. all the Schedule 1 foods plus all the other categories "included in the UK-wide reformulation programmes" (pies, cooking sauces, prepared dips).
Similarly, while the Welsh consultation considered the equivalent categories to England (summarised as foods "of most concern to childhood obesity"), it also added the potential extension to all foods "included in the UK-wide reformulation programmes". So there's a potential for a wider range of foods to be caught in Wales than in England.
In fact, it's possible that each country will have different categories of food to which the HFSS assessment has to be applied, which will make online sales fulfilled from border regions interesting to say the least!
Are the restrictions the same?
Potentially. Taking physical placement restrictions as an example, Wales is considering placement restrictions at store entrances, the till, end of aisle and free standing display units. Scotland proposed restricting the location of targeted foods in prominent places in physical premises where they are sold to the public. This would include checkout areas, (also self service), end of aisle, front of store (including store entrances and covered outside areas connected to the main shopping area) and island/bin displays. The intention is to be consistent with England and Wales 'where appropriate'. We hope that most of the time this is to reduce operational friction for those needing to comply. Although retailers are used to differing rules in Scotland for topics like the sale of alcohol, so there is a reference point here.
We won't know to what extent this approach is adopted by Scotland and Wales until the draft law is published, but we're seeing more and more businesses getting caught up in complexities caused by unclear legislative drafting.
What's next?
If the regulations come into force, we expect to see an adjustment period by brands and retailers alike as they get used to moving from trials to the 'live' environment. It will also take some time for regulators to catch up to speed.
While we wait for the outcome and timetable for Scotland and Wales, the next step will be the promotions restrictions and then the advertising restriction (being the most onerous of them all) which come into force in 2023 and 2024 respectively.
Should you require any advice in relation to how the devolved nation divergence and practical application of regulatory requirements will affect your business, or would like to discuss any point raised in this article, please contact Dominic Watkins or Katharine Mason.
