Consultation outcome

Mandating calorie labelling in the out-of-home sector: consultation response on policy enforcement

Updated 10 June 2021

Background

The Department of Health and Social Care (DHSC) consulted on its intention to introduce mandatory calorie labelling in the out-of-home sector from 14 September to 7 December 2018. The consultation received 1,158 responses from individuals, businesses, and organisations; 84% of responses from businesses were from small or micro businesses.

The government has published a formal response to that consultation, confirming that it will lay legislation to introduce mandatory calorie labelling for large businesses (businesses with 250+ employees).

Documents relating to the consultation have been published on GOV.UK.

Our original consultation sought views on how the policy could be enforced but made no specific proposals. Having considered the feedback received, the department further consulted between 30 July and 9 September 2020, on how compliance should be investigated, as well as views on penalties that could be administered in instances of non-compliance.

The department shared the enforcement consultation with businesses and organisations who responded to the original consultation. These respondents included local authorities, businesses affected by the policy, trade associations representing business affected by the policy, trading standards, health organisations and some in academia.

The government's response to that enforcement consultation follows.

Introduction

Our food environment is constantly evolving and offering a growing range of choices of what to eat and when to eat. On-the-go food such as eating out or getting takeaways are forming a growing proportion of people's diets, however there is often a lack of information about the calorie content of these items.

It is important that families are supported to navigate an increasingly complex food environment and make healthier choices for themselves with clear food labelling having an important role to play.

Regular overconsumption of a relatively small number of calories over time leads to weight gain and may result in individuals becoming overweight or obese.

Childhood obesity is one of the most significant health problems this country faces and at the heart of the government's prevention agenda. Nearly a quarter of children in England are overweight or obese when they start primary school aged five, and this rises to one third by the time they leave aged 11^{[footnote 1]}. Childhood obesity rates in the UK are among the highest in Western Europe^{[footnote 2]}. Obese children are more likely to become obese adults, and obesity in adulthood increases an individual's risk of developing type 2 diabetes, heart disease, fatty liver disease and a number of cancers^{[footnote 3]},^{[footnote 4]},^{[footnote 5]}.

Most recently, the COVID-19 pandemic has brought into sharp focus the impact obesity can have on individuals' health, with emerging evidence linking obesity with higher mortality rates from the disease. Most people know that eating a healthy diet while keeping active will help to prevent weight gain and reduce their risk of developing ill health, but this can be hard. We therefore need to support people to make healthier choices and build these into their everyday lives.

In July, the government published its obesity strategy: Tackling obesity: empowering adults and children to live healthier lives, confirming that it will lay legislation to introduce mandatory calorie labelling for large businesses (businesses with 250+ employees).

The department intends to legislate to introduce the policy using powers in the Food Safety Act 1990 (FSA). The FSA permits the use of improvement notices in instances of non-compliance with its measures. Improvement notices afford a food business the opportunity to undertake corrective measures to ensure their compliance with regulations before a penalty is levied. Any person failing to comply with an improvement notice is guilty of an offence.

Under the FSA non-compliance with an improvement notice results in the issuing of a criminal penalty. There may be a range of circumstances determining a businesses' capability to meet the conditions of an improvement notice, and therefore to ensure penalties are proportionate to the situation, the department proposes that local authorities should be permitted to issue fixed monetary penalties (FMPs, a form of civil penalty) as an alternative to the criminal penalties outlined in the FSA.

The Regulatory Enforcement and Sanctions Act 2008 (RESA) enables local authorities to be provided with powers to impose such penalties. FMPs can be imposed when the local authority is satisfied beyond reasonable doubt that an offence has been committed and decides that a civil penalty is the most appropriate action to take.

A requirement of the RESA is that the government consults those who will be affected by the policy. Our enforcement consultation fulfils this obligation under the act.

The Department of Health and Social Care is committed to supporting local authorities and the judicial system with the additional costs that would be incurred as a result of enforcing the policy.

We will work with local authorities to set guidance outlining the enforcement approach and penalties for non-compliance.

Response summary

In total, this enforcement consultation received 28 responses. These responses included 9 local authorities (31%), 7 trade associations representing business affected by the policy (28%) and 6 businesses affected by the policy (21%). The remaining 20% was made from an organisation representing trading standards professionals, a health organisation, an academic, an environmental health officer (independent of their local authority), a small business and a food catering consultancy.

26 responses were submitted via the online survey, with 2 submitted via email. Responses were analysed by DHSC policy officials.

All questions were optional, and all provided the respondent with the opportunity to give a justification for their answer or provide additional information in a free text box. All free text responses were read by DHSC officials.

Responses to questions have been summarised below.

Assessing compliance

Question 1: Are the proposed checks appropriate to assess compliance with calorie labelling?

We propose local authorities will check for:

• the presence of calorie labels on food and drink items that are in scope of the policy
• whether calorie labels are displayed as per the requirements under the law
• the method businesses have used to calculate calorie content and whether that method is appropriate

• whether calorie labels are appropriately displayed on any online presence that the business may have, including 3rd party platforms delivery platforms

• Yes: 75%
• No: 18%
• Don't know: 4%
• Not answered: 4%

Consultation feedback

In response to question 1, 75% agreed that the checks proposed are appropriate to assess calorie labelling, while 18% disagreed. Of the 75% that agreed with the proposal, 33% were local authorities, 19% were trade associations representing businesses affected by the policy and 19% were businesses affected by the policy. Of the 18% that disagreed with the proposal, 40% were local authorities, another 40% were businesses affected by the policy and 20% were trade associations representing businesses affected by the policy.

Those in favour, agreed that laboratory testing of products would be expensive and that primarily assessing the presence of labels in line with regulations and the methodology businesses used to calculate calorie totals, rather than officers calculating totals themselves, were more proportionate means with which to assess compliance. However, concerns were raised that this light-touch approach may make it difficult for enforcement officers to hold businesses to account for inaccurate calorie totals.

A standardised method for calculating these calories included in guidance from DHSC was suggested as something which would bring clarity for business and enforcing officers to confirm those compliant and ensure a level playing field between organisations. If multiple methods to measure calories are proposed, for franchise businesses, it was made clear there would have to be a clear line of communication from the franchisor's head office to inform franchisees which of these methods had been used.

Discussion

The significant majority of respondents to question 1 agreed that the proposed local authority checks were an appropriate means for assessing compliance with the policy. We would therefore expect local authorities to check that:

• the presence of calorie labels on food and drink items that are in scope of the policy

• calorie labels are displayed in accordance with the requirements under the law

• the method businesses have used to calculate calorie is considered appropriate and reliable

• calorie labels are appropriately displayed on any online presence that the business may have, including 3rd party platforms delivery platforms

Where an enforcement officer considers that a given calorie total or method used to calculate calorie content may be either inaccurate, inappropriate or otherwise unsound, they should request further information to verify the accuracy of the calorie information provided on a given menu item. Details on how calorie labels must be displayed in accordance with the regulations and recommended methods for calculating calorie totals will be set out in guidance that will be published once legislation to implement calorie labelling has successfully passed through Parliament.

In response to concerns that this approach may make it difficult to hold businesses to account, it’s expected that where local authorities have concerns about the accuracy of the declared calorie content, they will take appropriate steps and use their other powers as they consider necessary in the usual way. Local authorities retain the right under the Food Safety Act 1990 to investigate further and take away and analytically test food, if they are concerned about misleading information.

The department will publish guidance for businesses and local authorities outlining methods that may be used to calculate calorie information to aid business and local authorities by providing examples and explanations as to how they can calculate calorie information in a way which produces accurate and reliable data.

Penalties for non-compliance

Question 2: Should local authorities issue improvement notices in cases of non-compliance with calorie labelling?

• Yes: 64%
• No: 11%
• Don't know: 11%
• Not answered: 14%

Consultation feedback

In response to question 2, 64% agreed local authorities should issue improvement notices in cases of non-compliance with calorie labelling, while 11% disagreed. Of the 64% that agreed, 39% were local authorities, 22% were trade associations representing businesses affected by the policy and 11% were businesses affected by the policy. Of the 11% that disagreed, 67% were businesses affected by the policy and 33% were trade associations representing businesses affected by the policy.

The majority of respondents agreed the use of improvement notices would be a proportionate approach, as non-compliance with calorie labelling is not an immediate threat to health and improvement notices give businesses an opportunity to comply. Feedback also suggested that improvement notices should clearly identify the infraction(s) and present a timeline for improvement, with a tiered system for size of infraction. For example, a longer time for improvement given to provide calorie labelling for an entire menu, as opposed to provide labelling for a single item.

Discussion

In line with the consultation feedback, as an alternative to prosecution for non-compliance with calorie labelling, local authorities may issue an improvement notice.

Improvement notices provide businesses with the ability to take corrective steps before any penalty is levied. Regulations will require improvement notices to specify details such as the matters which constitute the failure to comply, and the time period within which measures must be taken to secure compliance. The period given for a business to secure compliance under an improvement notice will be for local authorities to consider on a case by case basis, when exercising their functions.

Furthermore, improvement notices need not be the first action upon an enforcement officer uncovering a potential infraction. Enforcement officers are permitted and encouraged to have initial conversations with businesses to resolve potential non-compliance before issuing formal notices.

Question 3: Where a business fails to meet the terms of an improvement notice, is a fixed monetary penalty of £2,500 appropriate?

• Yes: 25%
• No: 21%
• Don't know: 36%
• Not answered: 18%

Consultation feedback

In response to question 3, 25% agreed where businesses fail to meet the terms of an improvement notice, a FMP of £2,500 would be appropriate, while 21% disagreed and 36% answered "Don't know". Of the 25% that agreed, 43% were local authorities, 14% were trade associations representing businesses affected by the policy and another 14% were businesses affected by the policy. Of the 21% that disagreed with the proposal, 50% were businesses affected by the policy, 17% were local authorities and another 17% were trade associations representing businesses affected by the policy.

Those that agreed, understood that as the scope of the policy is limited to large business (250+ employees) the amount of the penalty would be appropriate. Although, it was suggested larger penalties may be required for very large businesses or if offences were repeated.

Those that disagreed raised concerns that given the policy does not concern matters where non-compliance poses a threat to life, such as allergens or food hygiene, the amount of the FMP was disproportionately high.

Those that responded, "Don't know", stated that they could not decide if £2,500 was an appropriate fine, as this level of FMP may not deter very large businesses from breaching regulations but could equally be disproportionately high for smaller businesses in scope of this policy.

Discussion

We recognise that there is a balance to be struck in enforcing policies between providing penalties that offer a significant deterrence to ensure compliance while ensuring that penalties are proportionate to the regulations they enforce.

Contravention of regulations that include areas such as allergens and food hygiene, can lead to criminal prosecution and a fine, which might be up to level 5 on the standard scale: unlimited. As contraventions of out-of-home calorie labelling would not pose the same immediate threat to health as allergen and food hygiene regulations, we believe that criminal prosecution resulting in the same level of fine would be disproportionate. Therefore, we propose local authorities may serve businesses that fail to comply with an improvement notice, and an FMP of £2,500, as an alternative to prosecution.

Regarding concerns that a £2,500 fine would be disproportionately high for individual franchisees within the scope of these regulations, an FMP is not the first action but imposed after initial conversations, an improvement notice and a notice of intent. Any FMP would be the result of non-compliance after the business has been given the opportunity to take measures to secure compliance. Additionally, (as per our response to question 6) businesses will have the opportunity to discharge liability and pay a reduced penalty at 50% of the level of the FMP. It is important that any penalty acts as a sufficient deterrent to businesses to ensure compliance with the policy. Taken together, we believe a £2,500 FMP to be proportionate.

Conversely, regarding concerns that a £2,500 fine is not sufficient to deter very large businesses from breaching the regulations, local authorities can impose fines on non-compliant franchisees, which taken together could provide a deterrent to franchisors. Additionally, local authorities could consider whether it was appropriate to bring a criminal prosecution if an FMP had had no effect in achieving compliance.

In accordance with the RESA, it is expected that local authorities will exercise their powers to impose a FMP in a way which is proportionate, consistent and targeted only at cases in which action is needed.

Question 4: Are there circumstances where a different approach might be more appropriate e.g. repeat offences?

• Yes: 50%
• No: 11%
• Don't know: 21%
• Not answered: 18%

Consultation feedback

In response to question 4, 50% agreed that there were circumstances where a different approach may be more appropriate, while 11% disagreed. Of the 50% that agreed, 36% were local authorities, 21% were businesses affected by the policy and 14% were trade associations representing businesses affected by the policy. Of the 11% that disagreed with the proposal (3 respondents), 2 were trade associations representing businesses affected by the policy and a catering food consultancy.

Those that agreed stated that a different approach would be appropriate for repeat offences. Feedback included that where there has been no evidence of corrective action or continued failure to provide accurate information, then further penalties may need to be considered. Weighted FMPs were proposed, increasing for each repeat infraction. Others raised that the improvement notice stage should be bypassed for repeat offenders. Some also suggested that if the monetary fine was not having the desired effect then prosecution should be considered.

Those that disagreed, stated that the approach should be consistent or had concerns with how to define repeat offences and whether this relates to a single premise or the business as a whole. It was cited that if repeat offences were to incur further penalties, it is important that these are only applied in case where there is recurring infringement at the same premises, and not the business as a whole.

Discussion

It is expected that local authorities will discuss areas where businesses may not be compliant with regulations, issuing improvement notices where necessary.

We have considered introducing a weighted system of fines, increasing for each repeat infraction. This approach would add complexity to the approach to enforcing the policy and is uncommon in other policies that make use of FMPs.

Instead local authorities will have the discretion to consider pursuing criminal prosecution as an alternative to civil sanctions where they consider it appropriate, including in relation to repeat offences where the fixed monetary penalty may have had no effect in achieving compliance. This approach provides local authorities with a route to increase the significance of the penalty and should act as a deterrent for repeat offenders.

We will evaluate the policy after its introduction, including how the policy is being enforced. The department will consider whether the enforcement approach is having the desired impact or if alternative measures and penalties may be required to address issues that may arise, such as repeat offences.

Process for issuing a fixed monetary penalty

Question 5: Is 28 days an appropriate period to make representations and objections or to discharge liability for a Notice of Intent?

The RESA specifies that 28 days is the longest period that can be permitted therefore any alternative suggestions must be less than 28 days.

• Yes: 61%
• No: 7%
• Don't know: 14%
• Not answered: 18%

Consultation feedback

In response to question 5, 61% agreed 28 days is an appropriate period to make representations and objections or to discharge liability for a notice of intent, while 7% disagreed. Of the 61% that agreed, 35% were local authorities, 24% were trade associations representing businesses affected by the policy and 18% were businesses affected by the policy. Of the 7% that disagreed with the proposal (2 respondents), 1 was a business affected by the policy and 1 was a health organisation.

Many respondents agreed with this length of time, as non-compliance did not result in an immediate risk to public health. Additionally, as only large businesses are in scope of the policy, it was cited that 28 days would be an appropriate amount of time for communication to reach head office and for a response to be given. There was also feedback that this period should not be less than that provided for in respect of a breach of other food information requirements.

A respondent that disagreed with a 28-day period to discharge liability or make representations and objections to the notice of intent, stated 28 days was too long and instead suggested a 14-day period.

Discussion

In line with feedback, businesses will have 28 days to make representations and objections or discharge liability for a notice of intent. This period is broadly in line with similar regulations which include a 21-28-day period. We believe this period of time should allow for time to make representations and objections and for communications from a single premise to head office and a response to be returned.

Question 6: Should a person be able to discharge liability upon being issued with a fixed monetary penalty at a rate of 50% of the penalty issued?

• Yes: 46%
• No: 11%
• Don't know: 25%
• Not answered: 18%

Consultation feedback

In response to question 6, 46% agreed that a person should be able to discharge liability upon being issued with an FMP at a rate of 50%, while 11% disagreed. Of the 46% that agreed with the proposal, 31% were local authorities, 31% were trade associations representing businesses affected by the policy and 23% were businesses affected by the policy. Of the 11% that disagreed with the proposal, 33% were local authorities and 33% were trade associations representing businesses affected by the policy.

Those who agreed stated that these means were consistent with other areas of enforcement but that the reduced rate should only be offered on confirmation that steps had been taken to ensure compliance and that this reduced rate should not be offered to repeat offenders.

The most common feedback stated by those that disagreed, included that a reduction of the penalty for paying promptly, diminishes the impact of the enforcement action desire to seek improvement. Others disagreed with the penalty being reduced, as the business received sufficient forewarning of what would constitute an infraction, and these would have been ignored.

Discussion

Discharging liability at a reduced rate is consistent with the enforcement of other policies that use FMPs. This approach affords businesses the opportunity to pay a reduced penalty and should help alleviate concerns from those who suggested the level of the FMP may be too high in response to question 3.

In response to suggestions that giving the business an opportunity to discharge liability at a reduced rate would diminish the enforcement action taken, after discharging liability, further improvement notices and penalties could be issued in instances where businesses are not compliant.

Question 7: Is 28 days an appropriate length of time to pay or appeal a Final Notice?

The RESA specifies that 28 days is the longest period that can be permitted therefore any alternative suggestions must be less than 28 days.

• Yes: 57%
• No: 11%
• Don't know: 14%
• Not answered: 18%

Consultation feedback

In response to question 7, 57% agreed that 28 days would be the appropriate length of time to pay or appeal a final notice, while 11% disagreed. Of the 57% that agreed with the proposal, 38% were local authorities, 25% were trade associations representing businesses affected by the policy and 19% were businesses affected by the policy. Of the 11% that disagreed (3 respondents), one was a business affected by the policy, one was a health organisation and the last was an environmental health officer.

The majority of respondents that agreed, stated that as there is no immediate risk to human health and as large companies may have complex financial structures, this is a proportionate amount of time to pay or appeal.

Those who disagreed, reasoned that companies would have been given sufficient warning of non-compliance, through communication with enforcement officers and improvement notices, which they have chosen not to address. Therefore, 28 days would be excessive – they proposed appeal or payment made in 14 days.

Discussion

In line with feedback, businesses will have 28 days to pay or appeal a final notice. This period is consistent with other regulations and necessary to allow businesses sufficient time to prepare appeals. This period of time should also address concerns raised about allowing companies time to process payments through their financial structures.

Question 8: Should failure to pay or appeal a penalty within 28 days result in the penalty being increased by 50%?

• Yes: 32%
• No: 18%
• Don't know: 32%
• Not answered: 18%

Consultation feedback

In response to question 8, 32% agreed that failure to pay or appeal within 28 days would result in the penalty being increased by 50%, while 18% disagreed. Of the 32% that agreed with the proposal, 56% were local authorities, 22% were trade associations representing businesses affected by the policy and 11% were businesses affected by the policy. Of the 18% that disagreed with the proposal, 40% were trade associations representing businesses affected by the policy, 20% were local authorities and 20% were businesses affected by the policy.

Those that agreed stated that increasing the FMP by 50% would act as a clear deterrent and put the onus on the businesses to comply. Others that agreed, suggested a reduced 25% increase in the fine for first time offenders and then a 50% increase a further 28 days later – unless a repeat offender.

Of those that disagreed, one raised the concern that as access to calorie information does not address any direct food safety risk to the consumer, it is not appropriate to continue to further increase the level of a fine issued by enforcement officers. However, others stated the fine should be far higher and if the business fails to pay within the 28 days, they will be unlikely to pay altogether so prosecution should follow.

Those who responded: ‘Don't know’, stated although this may deter business ignoring final notices, it may unfairly penalise those with a genuine reason for not meeting the deadline. Others that responded: ‘Don't know’, echoed elements of the arguments raised by those that disagreed, namely that if a business fails to answer the final notice, it is unlikely to pay. Therefore, proceedings through small claims court would be necessary, which can be costly for local authorities.

Discussion

In line with other regulations that include FMPs, failure to pay the penalty can result in an increase of 50%.

Businesses will have 28 days in which to pay the penalty or appeal against the final notice before any increase in the FMP is seen. This is in addition to the 28 days provided to make objections in response to a notice of intent. We believe these periods allow sufficient time for businesses to pay or appeal the penalty before an increase.

Failure to pay the FMP within the specified time period resulting in the level of fine increasing is consistent with other policies that use FMPs to enforce them. We believe that this will help local authorities recovering payments from businesses and provide an increased incentive for businesses to comply with the policy.

Guidance

Question 9: Should the regulations specify who local authorities must consult or should local authorities have flexibility to decide who it would be appropriate to consult with?

• Regulations should specify who local authorities must consul: 43%
• Local authorities should have flexibility on who to consult: 7%
• Don't know: 29%
• Not answered: 21%

Consultation feedback

In response to question 9, 43% thought that regulations should specify who local authorities must consult, while 7% thought local authorities should have flexibility on who to consult. Of the 43% that thought regulations should specify who local authorities must consult, 33% were businesses affected by the policy, 25% were local authorities and 25% were trade associations representing businesses affected by the policy and. Of the 7% that thought local authorities should have flexibility on who to consult (2 respondents), one was a local authority and one was an environmental health officer.

The majority of those who answered the question agreed that for consistency and clarity, regulations should specify who local authorities must consult with. Furthermore, to ensure a robust and meaningful response before publishing or revising guidance, it was suggested an option was included for local authorities to extend this consultation group, to take into account any local arrangements or partnerships that may be in place.

Those that thought local authorities should have flexibility on who to consult, made an argument for each local authority area being different and so would not like to be constrained by regulations that include which groups must be consulted.

Concerns were raised that it would be very onerous for each individual local authority to produce guidance on enforcement and consult specified persons before publishing or revising guidance. It was suggested that there should be national or regional guidance produced on the new penalties and enforcement, in order to reduce the onus on local authorities to produce guidance and undertake consultations.

Discussion

Under the terms of the RESA, as the regulator, local authorities will be required to produce guidance about the new penalties and how they will be used to enforce an offence. This will include information on the circumstances in which a penalty is likely to be imposed or not, how liability for the penalty may be discharged, and rights to make representations and objections or to appeal. Local authorities will be required to consult persons specified in the regulations before publishing or revising guidance.

In line with feedback, to ensure clarity and consistency, we intend to provide in the regulations, that local authorities must consult with such organisations as appear to them to be representative of interests likely to be substantially affected by the guidance before publishing or revising guidance. Also, in line with feedback, this will allow local authorities the necessary flexibility to consider whom to consult, taking into account their local area.

Additional consultation feedback

Question 10: Are there any circumstances where it might be inappropriate for local authorities to publish details of cases where a civil sanction has been imposed?

From those that answered, 63% stated that they were no circumstance where it would be inappropriate to publish details of civil sanctions. Local authorities publishing these details were often cited as good means of deterrent and that the transparency would create a level playing field. These details would also highlight businesses committing repeat offence and whether this was across multiple areas. However, some respondents suggested these details should only be published upon repeat offence.

Respondents that raised instances where these details should not be published suggested areas of the military or childcare and if an infraction was not improved upon due to ill health or bereavement.

Each local authority will publish reports from time to time. These reports must specify the cases in which an FMP has been imposed by the food authority, except where it has been overturned on appeal; and the cases in which liability to the FMP has been discharged.

In line with regulations that also use powers in the RESA, we expect local authorities to consider case sensitivity and refrain from publication of information, where they consider that publication would be inappropriate. Therefore, we will not specify exemptions to publication of sanctions in regulations.

Question 11: Will the additional requirements place any additional costs on your local authority?

All that answered, stated the policy would create an additional burden on local authorities. Concerns were raised that this policy would divert time from enforcement officers from current activities to train and enforce the policy.

These concerns were in addition to the cost of administration for improvement notices, final notices fixed monetary penalties and dealing with the appeals process, which if taken to small claims court could be prolonged and costly for the local authority.

Many queried whether this additional burden was necessary, given the policy does not provide an immediate protection to public health.

However, it is fundamental that we all have access to the information we need to support a healthier weight, and this starts with knowing how calorific our food is. On average the portions of food or drink that people eat out or eat as takeaway meals, contain twice as many calories as their equivalent bought in a shop. Research suggests that the food we eat outside the home makes up 20 to 25% of adult calorie intake. This legislation will support people to make more informed food choices and may play an important role in influencing the sector to produce healthier meals. This is more important now than ever, as obesity has become an immediate concern for anyone who is overweight and for our health and care services, especially in light of coronavirus (COVID-19).

Regarding costs to local authorities, the department considers new burdens as is standard practice. Estimated additional costs falling on local authorities have been assessed in accordance with the guidance on new burdens.

Question 12: If there are any further matters that you would like to raise or any further information that you would like to provide in relation to this consultation, please give details here.

Respondents raised a broad spectrum of other issues for consideration in line with this policy. These range of issues fall into four broad categories: necessity of the policy, scope of the policy, implementation of the policy and where further information was necessary.

With regard to necessity of policy, some respondents raised concerns in light of our exit from the European Union and the current COVID-19 pandemic, whether now was the time to implement this policy and place an additional burden on local authorities and businesses. Additionally, due to these factors, some respondents stated the 12-month implementation time was insufficient.

These concerns were in some part balanced by other respondents raising that obesity is a major public health issue and calorie labelling is an important measure in tackling obesity. Furthermore, some respondents raised that as the out of home sector is increasingly contributing to our everyday diet, providing calorie information would be a useful information tool to help people make more informed decisions. Others also stated that this policy was necessary to create a level playing field between the hospitality sector and the rest of the food and drink industry, as nutrition labelling is mandatory for pre-packed food and drink sold in supermarkets and other retailers. Additionally, a study was highlighted that suggested mandatory menu labelling has the potential to improve the nutritional profile of food served out of home, as this labelling can act as a low agency intervention by changing what outlets serve, meaning the healthier choice is made easier for consumers.

With regard to the scope of policy, respondents raised queries about how local authorities would determine if a business had 250+ employees.

However, this information should be held by businesses and made available to local authorities.

Others suggested that regulations should extend to businesses regardless of size and funds raised from the penalties should be ring fenced to provide nutrition support for small businesses upon extension of these regulations.

Whether the policy should be extended to smaller businesses will be considered during the evaluation of the policy after its implementation.

Further information was requested, regarding guidance provided by the government, and guidance provided by local authorities. The department will provide guidance, aimed primarily at those affected by the provisions in the regulations, such as for food businesses implementing the calorie labelling requirements and food enforcement authorities enforcing them. Under the terms of the RESA, as the regulator, local authorities will also be required to produce guidance about the new penalties and how they will be used to enforce an offence. We intend to provide in regulations, that local authorities must consult with such organisations as appear to them to be representative of interests likely to be substantially affected by the guidance before publishing or revising guidance.

Policy summary

Assessing compliance

We expect local authorities to check for:

• the presence of calorie labels on food and drink items that are in scope of the policy

• whether calorie labels are displayed as per the requirements under the law

• the method businesses have used to calculate calorie content and whether that method is appropriate

• whether calorie labels are appropriately displayed on any online presence that the business may have, including 3rd party platforms delivery platforms

Where an enforcement officer considers that a given calorie total or method to calculate calorie content may be either inaccurate or insufficient, they should request further information to verify the accuracy of the calorie information provided on a given menu item.

Penalties for non-compliance

In response to a business's non-compliance with calorie labelling regulations, local authorities will have the option to issue an improvement notice.

Improvement notices provide businesses with the ability to take corrective steps before any penalty is levied or criminal proceedings are triggered. These improvement notices need not be the first action upon an enforcement officer uncovering a potential infraction, in place of initial conversations between the officer and the business.

Any business failing to comply with an improvement notice is guilty of an offence and the enforcement authority may issue a notice of intent to impose on the business a FMP of £2,500, as an alternative to prosecution.

The RESA provides that a minister may not give a regulator the power to impose a civil sanction such as FMPs, unless they are satisfied that the regulator will act in accordance with certain principles. It is expected that local authorities will exercise their powers to impose a FMP in a way which is proportionate and only targeted in cases in which action is needed. They will also have the power to start criminal prosecution should they consider it appropriate.

Process for issuing a fixed monetary penalty

Businesses will have 28 days to make representations and objections or discharge liability following a notice of intent. If the penalty is paid within 28 days, businesses will be able to discharge liability by paying 50% of the FMP proposed.

If the penalty is not discharged, an enforcement officer may impose a final notice imposing a fixed monetary penalty and businesses will have 28 days in which to pay or appeal. Failure to appeal or pay the penalty within these 28 days will result in an increase of the penalty by 50%.

Guidance

Under the terms of the RESA, as the regulator, local authorities will be required to produce guidance about the new penalties and how they will be used to enforce an offence. This will include information on the circumstances in which a penalty is likely to be imposed or not, how liability for the penalty may be discharged, and rights to make representations and objections or to appeal. Local authorities will be required to consult persons specified in the regulations before publishing or revising guidance.

In line with feedback, to ensure clarity and consistency, we intend to provide in the regulations, that local authorities must consult with such organisations as appear to them to be representative of interests likely to be substantially affected by the guidance before publishing or revising guidance.

Outcomes and next steps

The government will introduce mandatory calorie labelling for large businesses (250+ employees) as a valuable tool to help consumers navigate a growing food environment with greater choice. Calorie labelling has been shown to be effective in helping consumers make informed and healthier choices where it has been tested. This requirement to display calorie information also aims to encourage reformulation, with businesses providing lower calorie options for their customers.

The government is committed to ensure enforcement of regulatory policies is proportionate and fair. We intend to use powers in the Food Safety Act 1990 and the Regulatory Enforcement and Sanctions Act 2008, to lay legislation before Parliament in 2021. We intend the legislation to come into force around 12 months later, in accordance with the Common Commencement Date initiative.

We will work with trade associations and local authorities to develop guidance for businesses to ensure they are supported to implement the policy in advance of it coming into force.

In addition to our duty under the RESA to review the regulations, the regulations themselves require us to carry out a review of the regulatory provisions in the regulations and publish a report setting out the conclusions of the review.

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