Consultation outcome

Restricting promotions of products high in fat, sugar and salt: consultation response on policy enforcement

Updated 21 July 2021

Background

In chapter 2 of the Childhood Obesity Plan, published in June 2018, the government set out its intention to ban promotions of high fat, sugar and salt (HFSS) (HFSS is also referred to as ‘less healthy’ in the Nutrient Profiling Technical Guidance) products by location and by price and committed to consult on how this should be implemented.

The consultation was launched on 12 January 2019, closed on 6 April 2019 and received 807 responses.

The government published a formal response in December 2020, confirming its intention to introduce restrictions on promotions of HFSS products by price (volume promotions) and location (checkouts, end of aisles and store entrances) in medium and large retailers that sell food and drink in England.

The government intends to use powers in the Food Safety Act 1990 to lay secondary legislation before Parliament.

See documents relating to the original consultation: Restricting promotions of food and drink that is high in fat, sugar and salt.

Our original consultation sought views specifically on which businesses, products and types of price and location promotions should be in scope of the restrictions; how HFSS products should be defined and how the proposal should be implemented. Having considered the feedback received, the Department of Health and Social Care (DHSC) further consulted, launching an enforcement consultation between 28 December 2020 and 22 February 2021 to seek views on how compliance should be investigated and achieved, as well as views on penalties that could be administered in instances of non-compliance. A full draft of the regulations was shared as an annex with the enforcement consultation.

The government is committed to ensuring enforcement of regulatory policies is proportionate, fair and avoids unnecessary criminal offences, by making greater use of civil sanctions, especially for minor breaches. This enforcement consultation was seeking to ensure that the legislation is clear and unambiguous and can be implemented effectively once enacted. Information provided outside the scope of the consultation was not included in this consultation response.

The government’s response to that enforcement consultation follows.

Introduction

The aim of this policy is to restrict the promotion of foods high in fat, sugar and salt in favour of healthier options to help improve people’s diets and reduce children’s sugar intakes. Promotion of HFSS products will be restricted by location and volume price as follows:

• location restrictions will apply to store entrances, aisle ends and checkouts and their online equivalents (that is, entry pages, landing pages for other food categories, and shopping basket or payment pages)

• volume price restrictions will prohibit retailers from offering promotions such as ‘buy-one-get-one-free’ or ‘3 for 2’ offers on HFSS products

Regular overconsumption of a relatively small number of calories over time leads to weight gain and may increase the likelihood of individuals becoming overweight or obese.^{[footnote 1]}

Childhood obesity is one of the most significant health problems this country faces and it is a large part of the government’s prevention agenda to help tackle the burden of preventable ill health. Nearly a quarter of children in England are overweight or obese when they start primary school aged 5, this has shown to rise to over one-third by the time they leave aged 11.^{[footnote 2]} Childhood obesity rates in the UK are among the highest in Western Europe.^{[footnote 3]} 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 4], [footnote 5], [footnote 6]}

Most recently, the COVID-19 pandemic has brought into sharp focus the impact obesity can have on an individual’s 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 2020, the government published its Obesity Strategy: Tackling obesity: empowering adults and children to live healthier lives, confirming the decision to introduce legislation to restrict promotions of HFSS products by location and price in retailers that sell food and drink in store and online in England.

The government intends to use powers in the Food Safety Act 1990 to lay secondary legislation before Parliament. The Food Safety Act permits the use of improvement notices in instances of non-compliance. 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 and liable on summary conviction to a fine.

Under the Food Safety Act 1990, non-compliance with an improvement notice results in the issuing of a criminal penalty. There may be a range of circumstances determining a business’s capability to meet the conditions of an improvement notice, and therefore, to ensure penalties are proportionate to the situation, the government has decided 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 Food Safety Act 1990.

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.

DHSC 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 73 responses. These responses included 6 enforcement bodies (8%), 15 trade associations (21%), 27 businesses (37%), 14 individuals (19%) and the remaining 11 (15%) were from organisations. Enforcement bodies include enforcement agencies and trading standards officers. Organisations include non-government organisations, charities, and academic institutions.

Fifty-six responses were submitted via the online survey, with 17 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.

The analysis presents data by respondent type (business, trade association, organisation, enforcement body, individual) and outlines the percentage of yes/no responses (to note that the percentages do not necessarily add up to 100 due to rounding). The data also indicates the most common views expressed in the free text sections.

The consultation outcomes are grouped and presented in the themes below:

• volume promotions

• free refills

• locations

• businesses in scope

• HFSS products

• enforcement approach

• penalties

• process for issuing a fixed monetary penalty

• additional requirements

• further consultation feedback

Responses to questions have been summarised below.

Volume promotions

Question 1: Does the legislation describe the volume price promotions accurately and clearly for both business and enforcement agencies to implement and enforce?

• Yes: 26 (36%)
• No: 27 (37%)
• Don’t know: 6 (8%)
• Not answered: 14 (19%)

Consultation feedback

In response to question 1, 36% agreed that the legislation describes the volume price promotions accurately and clearly for both businesses and enforcement agencies to implement and enforce, while 37% disagreed.

Looking specifically at the breakdown of responses by respondent group type:

• 57% of all individuals responded ‘yes’ to this question, as did 17% of all enforcement bodies, 55% of all organisations, 26% of all businesses and 27% of all trade associations

• 29% of all individuals responded ‘no’ to this question , as did 83% of all enforcement bodies, 18% of all organisations, 44% of all businesses and 27% of all trade associations

Some respondents who agreed that the legislation describes the volume price promotions accurately and clearly said that they found the examples given helpful for clarity. Organisations mentioned that it was important the regulations made it clear that all methods of communicating volume price promotions were in scope of the legislation. Organisations did have concerns about the extended transition timeline applied to volume price promotions on pack that will mean the regulations will permit existing stock that features wording such as ‘x% extra’ to be sold by relevant businesses until a year after the policy is implemented. They stated that they would like to see the regulation apply to all types of promotions from the same time as the implementation date for the policy to ensure the full health benefits are realised as quickly as possible.

Of those who disagreed that the legislation describes the volume price promotion accurately and clearly, there were concerns raised by organisations about potential loopholes that businesses could use to get around the volume price promotion restrictions and still be able to offer essentially the same kind of incentives for consumers. There were also concerns from enforcement bodies that the wording in the regulations was too broad and would therefore create enforcement challenges. There was a point of clarification raised by a trading standards officer as to whether volume promotions involving loyalty points and discounts on other products (instead of cash discounts) were included within the scope of the policy. It was highlighted by enforcement bodies and trade associations that supplementary guidance was needed to provide examples of types of promotions that are in scope. Businesses and trade associations were keen that the meal deal exemption was made clearer in the regulations.

Discussion

There were almost equal numbers to those that agreed and disagreed that the legislation describes price promotions clearly and accurately. In line with consultation feedback, clarity was given to the definitions of the volume price promotions in the regulations to make them fit for purpose for both businesses and enforcement officers.

The regulations are clear that volume price promotions refer to promotions which encourage the consumer to buy multiple items. More specifically, it is the express offer of a financial incentive for buying multiple items compared with buying each item separately. This includes equivalent offers for discounts on financial incentives on loyalty points or discounts on other products, for example ‘buy 3 get 1,000 extra loyalty points’ or ‘buy 3 save 25% on another product’. Evidence shows that volume price promotions encourage over-purchasing of HFSS products and result in a greater sales uplift compared to other types of promotion such as simple price reductions. This can lead to overconsumption, as people do not typically tend to stockpile these additional purchases.

Meal deals are generally targeted as lunch options for adults to consume on the go that day rather than being stockpiled at home; and they aim to reduce the cost of a single meal, as do offers such as ‘dine in for 2’. Therefore, it was decided that this type of price promotion will not be in scope of the restrictions. As a result of feedback from the consultation, the regulations are now clearer that ‘meal deals’ and ‘dine in for 2’ offers are exempt from the volume price promotion restrictions.

The department will publish guidance to support businesses and enforcement bodies, outlining further detailed explanations and providing examples of types of volume price promotions. This will include clarity on the meal deal exemption and multipacks.

Free refills

Question 2: Does the legislation describe the free refill restrictions accurately and clearly for both business and enforcement agencies to implement and enforce?

• Yes: 40 (55%)
• No: 4 (5 %)
• Don’t know: 12 (16 %)
• Not answered: 17 (23%)

Consultation feedback

In response to question 2, 55% agreed that the legislation described the free refill restrictions accurately and clearly for both businesses and enforcement agencies to implement and enforce, while only 5% disagreed.

Looking specifically at the breakdown of responses by respondent group type:

• 71% of individuals responded ‘yes’ to this question, as did 83% of enforcement bodies 73% of organisations, 48% of businesses and 27% of trade associations

• 14% of all individuals responded ‘no’ to this question, as did 9% of organisations and 7% of trade associations

Respondents broadly agreed that more clarification was needed for the qualifying businesses for which the free refill restriction applies.

Discussion

The restrictions will also apply to free refills of sugar-sweetened beverages in the out-of-home sector. Data shows that children consume up to 3 times more sugar than the daily recommended level and there is strong evidence showing that this overconsumption contributes to weight gain and, over time, obesity.^{[footnote 7]} In addition, we know that eating outside the home contributes around a quarter of adult’s daily calories,^{[footnote 1]} therefore it can play a significant role in excess calorie intake.

The businesses these restrictions apply to are outlined in the ‘Qualifying businesses’ section of the regulations. This section has been further refined having considered the feedback from this consultation. The definition of ‘restaurant’ in the regulations has also been amended to ensure further clarity for both businesses and enforcement officers.

The products applicable to these restrictions are outlined in Schedule 1, category 1 of the regulations which have been further defined following the feedback from this consultation.

Locations

Question 3: Does the legislation describe this exemption for stores below 185.8m² (2,000 square feet) accurately and clearly for both business and enforcement agencies?

• Yes: 24 (33%)
• No: 26 (36%)
• Don’t know: 9 (12%)
• Not answered: 14 (19%)

Consultation feedback

In response to question 3, 33% agreed that the legislation describes the exemption for stores below 185.8m² accurately and clearly for both businesses and enforcement agencies, while 36% disagreed.

Looking specifically at response breakdown by respondent group type:

• 71% of individuals responded ‘yes’ to this question, as did 50% of enforcement bodies, 36% of organisations, 15% of businesses and 20% of trade associations

• 21% of individuals responded ‘no’ to this question, as did 50% of enforcement bodies, 9% of organisations, 56% of businesses and 27% of trade associations

Almost the same proportion of respondents agreed that the legislation description was accurate and clear with regards to store size exemption as those that did not agree. Some respondents expressed concerns that businesses could use loopholes to claim some of their floor space is not considered as part of the ‘relevant floor area’ as defined in the regulations. Most of these respondents stressed that clear guidelines should be provided to ensure accuracy and consistency of the exclusions from the store’s main shopping areas.

Businesses and trade associations who disagreed that the legislation was described accurately and clearly with regards to store size exemption, suggested that alignment to the Sunday Trading Act store size exemption would be easier for implementation, understanding and enforcement. There were also calls for clarity from businesses, trade associations and a trading standards officer on exemptions which apply to the floor area, for example out of home businesses, store concessions and other excluded areas.

It was also noted among businesses who answered ‘yes’ and ‘no’ to this question, that airside airport store units and those in other travel hubs are considerably different to high street stores and the current legislation is not fit for purpose for these types of stores.

Discussion

The original consultation response (published December 2020) outlined the reasons for the decision for stores 185.8 square metres (2,000 square feet) or greater to be in scope of the location restrictions. Stores of this size are expected to have distinct checkout and front-of-store areas and typically have multiple aisles and aisle ends. Using the 185.8 square metre (2,000 square feet) size threshold also means that retailers that operate on Sundays that are just under 3,000 square feet (as required in the Sunday Trading Act) will be in scope of the location restrictions. The aim of this technical enforcement consultation was to ensure that the legislation is clear and can be enforced.

We recognise that the Sunday Trading Act 1994 floor area exemption size definitions are well used and understood both by businesses and enforcement officers. While the definitions for ‘relevant floor area’ in the Sunday Trading Act 1994 and in the regulations for this policy are very similar, they are not exactly the same, as both regulations are intended for different policies. To ensure that the policy is effective and proportionate we have applied a specific threshold for store size. In addition, the promotions regulations exclude more areas from the floor area than the Sunday Trading Act.

Following careful consideration of the feedback received, we have further defined the definition of ‘relevant floor area’ in the regulations. The government has decided to exempt the following parts of stores from the ‘relevant floor area’:

• not used for displaying goods or for serving customers in connection with the sale of goods

• used mainly for the preparation or sale of food intended for immediate consumption, whether on or off the premises (including, for example, a coffee shop or a canteen)

• rooms used for consultation with customers in connection with any medical services (such as pharmacy or opticians’ services) offered in the store

• occupied by a business (‘a concession’) other than the business primarily responsible for managing and operating the store, but only where the concession operates its own payment facilities

These exemptions are now made clear in the regulations.

Regarding the concerns raised about retailers in travel hubs, we understand the complexities of store layouts in these locations. As set out in the original consultation response, it was decided that a specific exemption for retailers in travel hubs was not justified, including airside airport stores. This was decided on the basis that HFSS promotions specifically for chocolate and sweets tend to be widespread in travel hub retailers. In addition, having exemptions for different businesses would cause implementation challenges and confusion for businesses and consumers, and would most likely create overly complicated enforcement requirements for local authorities.

The legislation is not about banning the sale of these less healthy products but about ending the constant promotion of foods that are less good for our health and can lead us to overconsume sugar and calories and ultimately gain weight. Businesses will be able to promote products that pass the Nutrient Profiling Model (NPM).

Question 4: Will enforcement officers readily be able to access information regarding the size of a store?

• Yes:12 (16 %)
• No: 20 (27 %)
• Don’t know: 25 (34%)
• Not answered: 16 (22%)

Consultation feedback

In response to question 4, 16% agreed that enforcement officers will be readily able to access information regarding the size of a store, while 27% disagreed.

Looking specifically at response breakdown by respondent group type:

• 43% of individuals responded ‘yes’ to this question, as did 15% of businesses and 13% of trade associations

• 21% of individuals responded ‘no’ to this question, as did 67% of enforcement bodies, 33% of businesses and 27% of trade associations

Respondents that agreed enforcement officers will readily be able to access information regarding the size of a store, explained some businesses, usually head offices, hold store size information which could be shared with enforcement officers.

Those that answered ‘no’ explained that store size information was not currently readily accessible and would be difficult for enforcement officers to access easily. Some businesses also explained that it was difficult and costly to take accurate measurements of their store size, especially for details of the ‘relevant floor area’. Businesses explained there would be difficulties in updating floorplans and new procedures will have to be developed by retailers to ensure that store managers have access to floorplans that are reflective of the store’s relevant store area. Some enforcement bodies explained that this could prove problematic when businesses are claiming an exemption to the policy. It was suggested by a trade association that for retailers in a Primary Authority partnership, a mechanism to provide store size information may be possible.

Discussion

It is important for enforcement officers to be able to readily access information regarding the size of the store they are inspecting. This policy makes clear qualifying businesses that are over 185.8m² (2,000 square feet) are in scope of the location restrictions and will need to ensure HFSS foods are not placed within the restricted areas of the relevant floor area.

There are other legal requirements and legislation which require businesses to have an understanding of the size of their stores. This is not the only legislation that requires businesses to know the size of their store. While we appreciate the relevant floor area is a new requirement for industry to familiarise itself with, this is a result of balancing feedback from industry and not diluting the policy’s impact.

We will provide guidance on the documentation that businesses will be advised to have on premises so that these details can be easily accessed by enforcement officers during a visit, if they are claiming an exemption. This should help reduce time and thus reduce burden on both enforcement officers and store managers.

Question 5: Do enforcement officers or retailers foresee any challenges with enforcing based on the size of a store?

• Yes: 32 (44%)
• No: 2 (3%)
• Don’t know: 23 (32%)
• Not answered: 16 (22%)

Consultation feedback

In response to question 5, 44% answered ‘yes’ to enforcement officers or retailers facing challenges with enforcing based on the size of a store, while only 3% said they did not.

Looking specifically at response breakdown by respondent group type:

• 57% of individuals responded ‘yes’ to this question, as did all enforcement bodies, 9% of organisations, 41% of businesses and 40% of trade associations

• 4% of businesses responded ‘no’ to this question as did 7% of trade associations

Respondents who foresaw challenges expressed the need for a clear source of information about the floor size area. Enforcement bodies expressed concerns about the burden of resources needed to accurately measure stores if information was not readily available. Suggestions were made to reduce this burden by having the relevant information available at the time of an enforcement officer’s visit. Some businesses and trade associations raised concerns about the misalignment with the size threshold of the Sunday Trading Act as a challenge to enforcement. They argued that using the Sunday Trading Act size threshold of 3,000 square feet will ensure consistency with existing legislation and enable enforcement officers to easily identify which stores are subject to the location restrictions.

Those who answered ‘no’ provided no comments.

Discussion

The original consultation response outlined the decision for stores 185.8 square metres (2,000 square feet) or greater to be in scope of the location restrictions. This is because they are expected to have distinct checkout and front-of-store areas and typically have multiple aisles and aisle ends. Using the 185.8 square metre (2,000 square feet) size threshold also means that retailers that operate on Sundays that are just under 3,000 square feet (as required in the Sunday Trading Act) will be in scope of the location restrictions. Our focus in this consultation was to ensure that the legislation is clear for industry and enforcement officers.

We recognise that the Sunday Trading Act 1994 floor area exemption size is well used and understood both by businesses and enforcement officers. However, the Sunday Trading Act is a fundamentally different policy to the restriction on promotions of less healthy food and drinks policy. The Sunday Trading Act 1994 governs the sale of goods from retail premises between certain hours on a Sunday to make provision as to the rights of shop workers. Whereas this policy is restricting the promotion of HFSS foods by volume price and location with the intention of improving diets. In addition, the promotions regulations exclude more areas from the floor area than the Sunday Trading Act.

As explained in response to question 4, we will provide guidance on the documentation that businesses will be advised to have on premises so they can be easily accessed by enforcement officers during a visit, if they are claiming an exemption. This should help reduce time and thus reduce burden on both enforcement officers and store managers.

Question 6: Are there any operational implications of setting the size of the store at 185.8 square metres (2,000 square feet)?

• Yes: 35 (48%)
• No: 2 (3%)
• Don’t know: 22 (30%)
• Not answered: 14 (19%)

Consultation feedback

In response to question 6, 48% agreed that there are operational implications of setting the size of the store at 185.8 square metres (2,000 square feet), while 3% disagreed.

Looking specifically at response breakdown by respondent group type:

• 50% of individuals responded ‘yes’ to this question as did 50% of enforcement bodies, 27% of organisations, 56% of businesses and 47% of trade associations

• only 7% of businesses responded ‘no’ to this question

Many businesses and trade associations who agreed that there would be operational implications said that the location restrictions would not be operationally achievable in small format stores. There were also comments raised about smaller convenience stores being disproportionally affected. Some trade associations mentioned that restrictions will be made worse if the store has an odd shape or limiting internal restrictions such as columns, likewise a business raised a similar issue for airside airport stores with walkthrough formats. Some respondents called for the size threshold to be increased to 3,000 square feet.

Of the businesses who answered ‘no’ to this question, one business explained that the 2,000 square feet cut-off is appropriate as most stores above this size have front-of-store areas and multiple aisle ends, which when used for HFSS promotions would undermine the principles of the government’s obesity policy.

Discussion

This question was targeted at identifying any issues with enforcing store size. As outlined in the consultation response published on 28 December 2020, having considered industry and stakeholder feedback government decided stores 185.8 square metres (2,000 square feet) or greater will be in scope of the location restrictions. This is because they are expected to have distinct checkout and front of store areas and typically have multiple aisles and aisle ends. Using the 185.8 square metres (2,000 square feet) size threshold also means that retailers that operate on Sundays that are just under 3,000 square feet (as required in the Sunday Trading Act) will be in scope of the location restrictions. Small and micro businesses (with fewer than 50 employees) are exempt from both volume price restrictions and location restrictions (regardless of their store size).

As outlined in the impact assessment, raising the threshold to 3,000 square feet would result in excluding an additional 2,761 stores. This would considerably dilute the public health policy which in turn would hinder the success of the policy aims to reduce excess purchases and therefore overconsumption of HFSS products which are demonstrably detrimental to health.

As a result of responses from this consultation, in order to assist industry to comply with the store size requirements, we have worked with industry to clarify the definitions in the regulations which refer to areas where specified food cannot be placed in store.

We plan to share draft guidance with industry to provide further clarity on how these restrictions will be implemented in practice. The purpose of the guidance document is to help illustrate how the provisions of the regulations work and to provide assistance to qualifying businesses and enforcement officers in understanding and applying them. The guidance document will provide further explanation and examples on how to consider operational implications such as unique store layouts when measuring the store size.

In store

Question 7: Which of these 2 options is most appropriate to describe the restricted store entrance area?

• Option 1: 21 (29%)
• Option 2: 10 (14%)
• Don’t know: 25 (34%)
• Not answered: 17 (23%)

The enforcement consultation presented 2 options to describe the restricted store entrance area. These are outlined below for reference:

Option 1

In the prohibited entrance area:

‘prohibited entrance area’ means an area immediately inside each public entrance to the store’s main shopping area, being a square:

1. of area equal to the smaller of 225m² or 5% of the store’s floor area, and

2. drawn so one edge of the square coincides with the line of the entrance, with the midpoint of that edge coinciding with the midpoint of the entrance

irrespective of whether such area is obstructed by walls or other structural features of the store.

Option 2

At any point within the prohibited distance of the midpoint of any public entrance to the store’s main shopping area:

‘the prohibited distance’ means a distance being the smaller of 15 metres or the following:

(square root of (0.05 x area))

Consultation feedback

In response to question 7, 29% preferred option 1, while 14% preferred option 2.

Looking specifically at response breakdown by respondent group type:

• 43% of individuals chose option 1 as did 33% of enforcement officers, 9% of organisations, 33% of businesses and 20% of trade associations

• 21% of individuals chose option 2, as did 17% of enforcement officers, 36% of organisations and 7% of businesses

Most respondents who preferred option 1 stated that it was easier to understand, calculate and implement. Most respondents who preferred option 2 stated that it was preferable as a greater prohibited area was obtained through this calculation (these were largely NGOs making these comments). After further clarification, enforcement officers explained option 2 would be easier to enforce in practice.

Trade associations representing relevant businesses who mainly operate in travel hubs such as airports, raised concerns as to how the store entrance restrictions would apply to stores with no doors or doorways. They explained that the current wording of the legislation is not clearly applicable to these types of stores and more guidance, tailored to these types of stores with open plan entrances, is needed to support retailers in overcoming specific logistical challenges.

Discussion

The location promotion restrictions will only apply to checkout, designated queuing areas, end of aisle displays, and store entrance displays.

Having considered the consultation feedback and balancing this with the aims of the policy to ensure a proportionate response, government have decided option 2 is the most appropriate option to implement. We are aware that respondents’ preferences may have been motivated by the difference in the size of the prohibited entrance area rather than the shape of the prohibited entrance area. We have therefore decided to adjust the size of the prohibited entrance area (for option 2) to 3% of the store’s relevant floor area instead of 5%, aligning this as far as reasonably practical to the same prohibited entrance area as 5% of the store’s floor area of option 1.

Option 2 is:

‘the prohibited distance’ means the smaller of 15 metres or the following:

(square root of (0.03 x area))

Further engagement with enforcement officers found that they agreed option 2 is easier to practically enforce. In practice, this option is easier to implement and measure as it means that the prohibited distance can be measured in any direction from the midpoint of the entrance, resulting in a semi-circle shape. Option 1 could result in odd shaped areas depending on the store’s shape that would be difficult to measure and enforce. It may not have been immediately apparent from the way the question was worded in the consultation, but both calculations in the options presented would have required a square root to be performed.

We have considered several approaches and have decided to apply the option 2 calculation to open plan store entrances, with the adjusted size of the prohibited entrance area to 3%. This would mean taking the midpoint of the store entrance and applying the calculation from this point. Although this approach would mean stores could sell HFSS products on the edges of the open plan entrance where customers can technically enter the store, the centre radius of the store is still restricted aligning with our proposed approach to store entrances generally, without diluting the policy intention by exempting open plan store entrances entirely from the policy.

Research shows nearly half of all food and drink products located in prominent areas such as store entrances, checkouts and aisle ends were for sugary foods and drinks.^{[footnote 8]} 70% of these products were for food and drinks that contribute significantly to children’s sugar and calorie intakes. Exempting open plan entrances entirely from the location restrictions would dilute the public health benefit of this policy substantially.

Question 8: Do the check-out, aisle end and store entrance definitions accurately and effectively capture these prominent in-store locations?

• Yes: 24 (33%)
• No: 24 (33%)
• Don’t know: 8 (11%)
• Not answered: 17 (23%)

Consultation feedback

In response to question 8, 33% agreed that the check-out, aisle end and store entrance definitions accurately and effectively capture these prominent in-store locations, while another 33% disagreed.

Looking specifically at response breakdown by respondent group type:

• 71% of individuals responded ‘yes’ to this question, as did 50% of enforcement bodies, 55% of organisations, 15% of businesses and 7% of trade associations

• 21% of individuals responded ‘no’ to this question, as did 33% of enforcement bodies, 9% of organisations, 44% of businesses and 40% of trade associations

Organisations were largely supportive of these location definitions but overall felt further clarity could be given to support enforcement. An organisation who agreed that the definitions accurately and effectively captured the prominent in-store locations, recommended that the review process considered any new promotional tactics employed by retailers to give prominence to the restricted food and drink products in order to future proof the policy.

Those who did not agree that the definitions accurately and effectively captured the prominent in-store locations gave feedback on the need to refine the definitions of the locations for further clarity on compliance and enforcement. A definition for main aisles and end-of-aisle displays was requested. There were requests from respondents for specified food placed in a main shopping aisle which happens to fall within the restricted area within 2 metres of designated queuing area to be exempt.

Respondents also raised the added challenges COVID-19 social distancing measures will have on compliance with the regulations such as longer queuing areas.

Question 9: Are the definitions clear for both business and enforcement agencies to implement and enforce?

• Yes: 13 (18%)
• No: 26 (36%)
• Don’t know: 18 (25%)
• Not answered: 16 (22%)

Consultation feedback

In response to question 9, 18% agreed that the definitions are clear for both business and enforcement agencies to implement and enforce, while 36% disagreed.

Looking specifically at the breakdown of responses by respondent group type:

• 57% of individuals responded ‘yes’ to this question, as well as 33% of enforcement bodies and 11% of businesses

• 29% of individuals responded ‘no’ to this question as did 50% of enforcement bodies, 48% of businesses and 40% of trade associations

Most respondents who agreed that the definitions were clear gave no further comments. One enforcement officer mentioned the only exception was that ‘end of aisle’ could be made clearer with additional descriptions to help prevent disputes.

Of those who said that the definitions were not clear, one business mentioned that drinks cabinets would benefit from further clarification in the regulations as there were significant challenges with moving chillers from store entrances. Clearer definitions for exempt concessions (such as, food service operators), the relevant floor area, and prohibited store entrance areas were also requested by some businesses and a trade association. One business explained that the definition of store entrances and aisles required some further clarification due to the significant impact on the remodelling requirements, time and costs on businesses. Several trade associations explained that the designated queuing area definition needed clarification and may be difficult for enforcement officers to enforce in practice. Businesses explained further clarity for product definitions and restricted locations in the regulations is needed for successful implementation.

Question 10: Do these definitions need any further clarity?

• Yes: 36 (49%)
• No: 11 (15%)
• Don’t know: 10 (14%)
• Not answered: 16 (22%)

Consultation feedback

In response to question 10, 49% agreed that the definitions need further clarity, while 15% disagreed.

Looking specifically at response breakdown by respondent group type:

• 50% of individuals responded ‘yes’ to this question as did 83% of enforcement bodies, 55% of organisations, 48% of businesses and 33% of trade associations

• 43% of individuals responded ‘no’ to this question as did 17% of enforcement bodies, 9% of organisations, 7% of businesses and 7% of trade associations

One organisation who felt no further clarity was needed caveated this by saying that while the definitions were clear, they were not comprehensive. They had concerns about the displacement of products to other prominent locations. One enforcement body requested that extra clarity on the definition for ‘end of aisle’ was made.

Respondents who agreed that further clarity on the definitions was needed stressed that clearer guidance was needed to facilitate compliance and avoid errors in enforcement. Some businesses requested clarity on prohibited areas for multiple store entrances, open plan store entrances (that is, with no doorways) and the distance from end-of-aisle-displays that free-standing display units can be placed. Feedback was given that further clarity on businesses that are out of scope was needed.

Discussion for questions 8, 9 and 10

As discussed in our response to question 3, in response to feedback we have made exemptions for certain parts of the store under our definition of ‘relevant floor area’.

We have also revisited our definitions to ensure that they are comprehensive and effective. The regulations have now revised the definition for what an end of aisle display means for clarity. This will also be further clarified in guidance with examples.

If a store does not have a designated queuing area, then the restrictions pertaining to the designated queuing area will not affect that store. The accompanying guidance will provide further clarity around the restrictions for the designated queuing area in stores.

After considering various options for approaching the issue of multiple store entrances, we have decided not to implement exemptions on stores with multiple entrances.

Further engagement with a trade association indicated that some supermarkets only have one entrance, however, it is not uncommon for stores to have multiple entrances, with some stores having up to 7 entrances. Exempting store entrances that would otherwise be subject to the regulations would dilute the overall policy intent and result in a reduced public health benefit of the policy.

In response to the feedback, we have clarified in the regulations the distance around free-standing or separate structures (such as an island bin, free-standing unit, side stack or clip strip) in relation to the end of an aisle.

Regarding responses about store entrances with no doorways, we will make it clear in the guidance that this will be measured by calculating the radius from the midpoint of the overall entrance, based on the calculation in option 2 for the relevant floor area.

A post-implementation review will be conducted for this policy and will look to include considerations such as whether, and to what extent, the regulation has achieved its original objectives and if these remain appropriate. The purpose of this consultation, however, was not to seek input into what should be included in this review. The post-implementation review is explained in more detail in response to question 35.

Online

Question 11: Does the legislation correctly capture the online equivalents to in-store locations described above?

• Yes: 31 (42%)
• No: 21 (29%)
• Don’t know: 10 (14%)
• Not answered: 11 (15%)

Consultation feedback

In response to question 11, 42% agreed that the legislation correctly captures the online equivalents to in-store locations, while 29% disagreed.

Looking specifically at response breakdown by respondent group type:

• 64% of individuals responded ‘yes’ to this question as did 83% of enforcement bodies, 82% of organisations, 11% of businesses and 33% of trade associations
• 21% of individuals responded ‘no’ to this question as did 52% of businesses and 27% of trade associations

Most respondents agreed that the legislation correctly captures the online equivalents to in-store locations. Organisations were concerned that there is the potential for displacement of these promotions, for example by placing greater emphasis on driving traffic towards special offer pages, which are not currently in scope of the policy.

Organisations were keen to see regular reviews of these regulations to thoroughly assess unintended consequences and bring into scope any promotions that could limit the impact of this policy. Enforcement bodies acknowledged that it was difficult to compare online stores with in-store retail environments but agreed that the legislation correctly and appropriately captured the online equivalents.

Of those who disagreed, some businesses and a trade organisation explained that the searching and browsing restrictions are too far reaching and too restrictive. Some disagreed that direct comparisons could be made between online and in-store environments. One business highlighted that there are no direct in-store equivalents to pop-ups or favourites pages and similarly another business disagreed that landing pages for other product categories was the equivalent to end of aisle displays. These businesses argued the restrictions for online space are overly restrictive in comparison to the instore equivalents.

There were a number of suggestions from businesses, including recommendations that the description of the ‘Entry page’ of a website in the regulations should be changed to ‘homepage’ as this is a more widely understood phrase and is more comparable to the entrance of a physical store entrance. Others asked for clarity on whether non-transactional websites were in scope of the restrictions. Some businesses felt there needed to be further clarification on the scope of online marketplaces included in the policy.

There were requests by businesses and trade associations for better links and alignment with the government’s advertising restrictions policy.

Discussion

To ensure a level playing field and to reflect the increasing trend of people shopping online, the government decided that the location restrictions should be reflected in online locations.

We recognise that in-store and online environments have fundamental differences that mean that the regulations for these respective settings need to be treated differently.

The online equivalents are defined as follows:

• a store entrance equates to the homepage of the website
• end-of-aisle displays include promoting HFSS products when a customer is browsing or searching other food categories
• a checkout is when the customer views their basket or proceeds to make a payment

Having carefully considered the feedback from the enforcement we have further refined the wording in the regulations to better capture the online equivalents to in-store locations.

The term ‘entry page’ is now referred to as ‘home page’ as it was decided that this better reflected what the policy was trying to capture as the equivalent of a store entrance.

Online marketplaces have now been defined in the regulations to help with clarity. The regulations now further define the scope of the policy for searching and browsing products online.

Non-transactional websites are not in scope of this policy as they do not fall under the definition of an ‘online marketplace’ defined in these regulations.

The guidance document will further explain the alignment and interaction of this policy with the advertising restriction policy, but it is important to note that at the time of publication of this consultation response, the details of the advertising restriction policy have not yet been finalised.

Question 12: Does the legislation describe the locations accurately and clearly for both business and enforcement agencies to implement and enforce online?

• Yes: 23 (32%)
• No: 21 (29%)
• Don’t know: 18 (25%)
• Not answered: 11 (15%)

Consultation feedback

In response to question 12, 32% agreed that the legislation describes the locations accurately and clearly for both business and enforcement agencies to implement and enforce online, while 29% disagreed.

Looking specifically at response breakdown by respondent group type:

• 64% of individuals responded ‘yes’ to this question as did 83% of enforcement bodies, 27% of organisations, 15% of businesses and 13% of trade associations
• 14% of individuals responded ‘no’ to this question as did 49% of businesses and 40% of trade associations

Of those who said the legislation described the locations accurately and clearly, some said that clear and detailed guidance and training for businesses and enforcement agencies as part of implementation was still needed. One enforcement body stressed the importance of including a message about what the of role the Primary Authority is in the legislation.

Feedback from the businesses and trade associations who did not feel that the legislation described the locations accurately and clearly to implement and enforce online felt that it was unclear how the online regulations will be enforced. Businesses felt it was unclear what was meant by ‘online marketplace’ and a trade association requested a definition for this term in the regulations. More clarity was requested by businesses and a trade association on what will be restricted when customers are searching or browsing for items.

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.

The regulations have been updated to include further clarity on the restrictions for searching and browsing online.

In response to feedback, there is now a definition of ‘online marketplace’ in the draft regulations.

To ensure clarity and consistency, we intend to share draft guidance with industry on how these restrictions will need to be implemented in practice. The guidance document will help to provide a better understanding of how the regulations should be applied, illustrating how the provisions are intended to work in practice.

The guidance document will provide further explanation and examples on:

• the businesses in scope
• food in scope
• volume price promotion restrictions
• free refill restrictions
• location promotion restrictions
• online restrictions on location promotions
• enforcement process details

Where a business has a Primary Authority relationship, this may be a good route for ensuring compliance and building better relationships. This will be outlined as a suggestion in guidance, but this will not be appropriate for every business.

Businesses in scope: symbol groups

Question 13: Does the legislation describe the symbol groups accurately under franchises?

• Yes: 22 (30%)
• No: 17 (23%)
• Don’t know: 20 (27%)
• Not answered: 14 (19%)

Consultation feedback

In response to question 13, 30% agreed that the legislation describes the symbol groups accurately under franchises, while 23% disagreed.

Looking specifically at response breakdown by respondent group type:

• 57% of individuals responded ‘yes’ as did 50% of enforcement bodies, 36% of organisations, 11% of businesses and 27% of trade associations

• 7% of individuals responded ‘no’ to this question as did 33% of enforcement bodies, 33% of businesses and 7% of trade associations

Common responses from the organisations who agreed that the legislation described symbol groups accurately under franchises, included explanations that symbol groups should be in scope for the regulations as they have a significant role in the marketing and sales of the HFSS food and drink and they accurately reflect the prominence of this structure in the UK shopping landscape.

Organisations who agreed also explained symbol group stores are an important source of food for communities living in food deserts (this means an area that has limited access to affordable and nutritious food) and who have poor access to larger supermarkets, highlighting that these groups therefore represent an important part of shopping habits in the UK and have a role to play in shaping healthier food environments.

Common responses from those that did not feel that the legislation described symbol groups accurately under franchises, included explanations that symbol groups should not be treated as a franchise operator as centralised services are usually not provided to them. It was suggested by a business that the headcount of the business that controls the range and placement is used for defining whether the business qualified for policy restrictions, not the headcount of a supplying business. Some businesses and a trade association explained that the wide range of brands that appear on convenience store fascia will make it challenging for retailers and enforcement officers to determine whether a business is subject to a franchise agreement as currently defined in the regulations.

Question 14: Are there any implications to the businesses model in including symbol groups as part of this policy?

• Yes: 23 (32%)
• No: 6 (8% )
• Don’t know: 29 (40%)
• Not answered: 15 (21%)

Consultation feedback

In response to question 14, 32% said that there are implications to the businesses model in including symbol groups as part of this policy, while 8% said that there are not.

Looking specifically at response breakdown by respondent group type:

• 29% of individuals responded ‘yes’ to this question as did 33% of enforcement bodies, 27% of organisations, 33% of businesses and 33% of trade associations

• 7% of individuals responded ‘no’ to this question, as did 17% of enforcement bodies, 4% of businesses and 20% of trade associations

Respondents who felt there were no implications provided no further comments.

Some organisations commented that applying the restrictions across as many businesses selling food and drink as possible will create a coherent policy environment for consumers and ensure the best possible health benefit.

A common response among those who felt that there are implications to the businesses model was that symbol group retailers should be treated as independent retailers. Businesses and trade associations explained that it will be very difficult to differentiate between independent retailers who are part of a symbol group and those who are not – leading to difficulties in enforcing the legislation. They also raised concerns about the ability of symbol group retailers to identify HFSS products that are subject to the regulations. These respondents commented that including symbol groups in the policy will likely lead to small members choosing to leave their symbol group to avoid the restrictions.

Discussion for questions 13 and 14

Following careful consideration of the feedback received in the original consultation, government decided that the restrictions will apply to medium and large businesses (which we are defining as 50 or more employees, see section 172 of the Taxation (International and Other Provisions) Act 2010 and EU Recommendation 2003/361) that sell food or drink in England. This includes franchises or symbol group arrangements where multiple businesses operate under the same name (where the total number of employees operating under that business name is 50 or more). A symbol group retailer is an independent or multiple retailer that is a member of and trades under the name of a larger organisation known as a symbol group or franchise. The symbol group is considered a large business which has small and micro independent and multiple retailers trading under the group name.

As organisations expressed in this consultation, symbol groups can be an important source of food for communities living in food deserts (this means an area that has limited access to affordable and nutritious food) and who have poor access to larger supermarkets. These groups therefore represent an important part of shopping habits in England and have a role to play in shaping healthier food environments.

Symbol groups represent a significant overall proportion of the affected stores of this policy (estimated at 14% for the location restrictions and 60% for volume price restrictions). Symbol groups represent 37.6% of turnover of the convenience sector. Not including them in the policy would dilute the health benefit of the policy substantially.

The decision to include symbol groups in scope of the policy was made as part of the original consultation as it was found businesses that are part of a symbol group will benefit from support and/or trading benefits which can help mitigate the impacts that other smaller businesses face. We have engaged with trade associations representing symbol groups to understand this business model further.

While we appreciate that there are some complexities surrounding the inclusion of symbol group retailers in this policy due to the varied and wide-ranging support each individual store receives from its symbol group headquarters, the support they receive and the health benefits to the public by their inclusion in the restrictions justify the steps taken.

Approximately 12% of symbol group stores are over 2,000 square feet, so therefore the majority of symbol group stores will not be subject to the location restrictions of the policy. Lawyers have taken the definition of franchises from existing legislation and they have not been able to find legislation which defines symbol groups independently from franchises.

We have tested stricter parameters for the definition of a franchise in the regulations during this consultation process but have found this resulted in many symbol groups potentially being left out of scope of the policy, diluting the public health benefit of the policy substantially, particularly on restrictions for volume price promotions.

The government has decided to keep the definition in the regulations the same, in line with the policy made following the original consultation.

HFSS products

Question 15: Does the legislation adequately capture the intended categories?

• Yes: 26 (36%)
• No: 28 (38%)
• Don’t know: 9 (12%)
• Not answered: 10 (14%)

Consultation feedback

In response to question 15, 36% agreed that the legislation adequately captures the intended categories, while 38% disagreed.

Looking specifically at response breakdown by respondent group type:

• 71% of individuals responded ‘yes’ to this question as did 33% of enforcement bodies, 27% of organisations, 26% of businesses and 27% of trade associations

• 14% of individuals responded ‘no’ to this question as did 17% of enforcement bodies, 27% of organisations, 52% of businesses and 53% of trade associations

Among those that thought the legislation adequately captured the intended categories, guidance was requested for further clarity.

Respondents who did not think the legislation adequately captures the intended categories said that the categories needed more clarity as they felt they were too broad and difficult to interpret. There was a concern raised by an enforcement officer that enforcement officers are not familiar with the NPM so will need training to be able to identify products that are subject to the restrictions.

There were other suggestions for categories to be reviewed regularly as new product categories are constantly evolving.

Question 16: Is it clear from the legislation which products are in scope? If not, how can this be clarified?

• Yes: 20 (27%)
• No: 38 (52%)
• Don’t know: 5 (7%)
• Not answered: 10 (14%)

Consultation feedback

In response to question 16, 27% thought that it is clear from the legislation which products are in scope, while 52% thought that it is not clear from the legislation which products are in scope.

Looking specifically at response breakdown by respondent group type:

• 64% of individuals responded ‘yes’ to this question as did 50% of enforcement bodies, 9% of organisations, 19% of businesses and 13% of trade associations

• 21% of individuals responded ‘no’ to this question as did 33% of enforcement bodies, 55% of organisations, 63% of businesses and 67% of trade associations

Respondents who felt it was clear from the legislation which products were in scope said the products in scope are clearly described.

Respondents who did not think it was clear from the legislation which products are in scope said that more detailed guidance was needed. It was noted that determining whether the products are HFSS or not using the NPM will be challenging for retailers if they do not have access to the full recipe information. Many respondents gave detailed feedback on the wording of the legislation to improve clarity.

Discussion (for questions 15 and 16)

The government decided that the restrictions should apply to product categories that are significant contributors to children’s sugar and calorie intakes and are heavily promoted, and therefore are the categories of most concern for childhood obesity. We will support retailers and enforcement agencies with guidance on the products within these categories to ensure they can be clearly identified.

For these product categories, anything that is classed as HFSS (or less healthy) cannot be promoted through volume or location promotions. HFSS is defined by the 2004 to 2005 NPM. The method for calculating the NPM is set out in the Nutrient Profiling Technical Guidance, dated 2011. The NPM provides products with a score calculated based on their nutritional composition.

We received several categorisation questions and we have added detail of the categories in the guidance. We have revised the wording to the categories listed in Schedule 1 of the Regulations to improve clarity based on the feedback received. We are working with industry and Public Health England (PHE) to provide fit for purpose definitions for the categories and will be including a more extensive list of examples in guidance.

The guidelines set out in this document have been produced to assist food manufacturers and retailers to correctly calculate nutrient profiling scores for their products. This document aims to answer the frequently asked questions about the application of the model to different types of products through a simple guide, Q&A section and worked examples.

DHSC is looking into more ways to support businesses and enforcement bodies to calculate NPM scores. We will keep industry updated as work on this progresses.

We recognise that for some products which are inherently HFSS, reformulation to achieve the NPM threshold will be more challenging. However, there are other incentives such as consumer demand for healthier products, the possibility of making nutrition claims, and PHE’s reformulation programme, which we hope will incentivise manufacturers to reduce the salt, fat and sugar levels in their products as well as reduce portion sizes.

The government decided that the restrictions should apply to product categories that are the biggest contributors to children’s sugar and calorie intakes and are heavily promoted, and therefore are the categories of most concern for childhood obesity. Therefore, it is important for public health reasons that all products within these categories are in scope of the promotions restrictions.

Question 17: Are there any products that are unclear as to whether they are in scope of the current categories?

• Yes: 38 (52%)
• No: 12 (16%)
• Don’t know: 8 (11%)
• Not answered: 15 (21%)

Consultation feedback

In response to question 17, 52% thought that there are products that are unclear as to whether they are in scope of the current categories, while 16% disagreed.

Looking specifically at response breakdown by respondent group type:

• 29% of individuals responded ‘yes’ to this question as did 50% of enforcement bodies, 55% of organisations, 56% of businesses and 67% of trade associations

• 29% of individuals responded ‘no’ to this question as did 50% of enforcement bodies, 9% of organisations, 7% of businesses and 13% of trade associations

Several respondents raised questions about specific categorisation of various products. One trade association asked for clarity on whether customer-operated coffee machines in retailers were in scope. Meal replacement products and foods targeted for babies and toddlers were products that were among those specifically asked about.

Discussion

As set out in the original consultation response, the restrictions will apply to prepacked products in the following product categories:

• soft drinks

• cakes

• chocolate confectionery

• sugar confectionery

• ice cream

• morning goods

• puddings

• sweet biscuits

• breakfast cereals

• yoghurts

• sweetened milk-based drinks

• sweetened juices

• pizza

• ready meals

• meal centres, including breaded and battered products

• crisps and savoury snacks

• chips and potato products

Meal replacement products and food products targeted to infants under 36 months are not in scope of the restrictions. The guidance document will provide further explanation and examples on the products in scope. Our intention is to set out principles for the categorisation of products, so it is clear for industry and enforcement officers if products are in scope.

If a product falls within one of the categories in scope of the policy, retailers will need to then calculate the NPM score for this specific product to determine whether it is considered ‘less healthy’. We will provide industry and enforcement officers with guidance on a principled based approach for how to determine whether a product is subject to the restrictions.

Assessing compliance

It is important for both businesses and the enforcement agencies ensuring the regulations are being followed to understand what is expected of them to demonstrate compliance. It is also important to be clear where responsibility lies for ensuring that the law has been complied with.

Responses through our original consultation discussed how promotions were typically agreed between manufacturers and retailers. However, retailers are the businesses responsible for selling the products to the public and therefore the expectation is that compliance with the regulations falls to them. This means that any business that displays HFSS products in a way that does not meet the requirements of the legislation will be liable, unless an exemption applies.

It is expected that retailers will need to assess whether each of the products they stock is within the categories in scope of the restrictions and if yes, they will need to assess whether it is considered HFSS by calculating its NPM score. If the products are deemed in scope then it will be the responsibility of the retailer to ensure that they comply with the restrictions on promotions as set out in the regulations. Therefore, we expect retailers to be responsible for ensuring the products they are promoting are compliant. To assist retailers and minimise the burden of this assessment, DHSC will provide guidance to help businesses implement the restrictions. There may be some instances where retailers need to ask manufacturers to provide the NPM score or further information for their products, given that retailers may not always have all the nutrient information needed to calculate the NPM score for branded products. Manufacturers may therefore choose to provide NPM scores to retailers if they wish to promote a product that is in a product category within scope but that is not HFSS due to its NPM score.

Any such information provided by a manufacturer to a retailer should be accurate and should not be misleading. If information provided to a retailer is considered misleading an enforcement authority may take enforcement action against the manufacturer under separate legislation (for example, they may consider their powers under section 14 of the Food Safety Act 1990, which prohibits selling food not of the nature or substance or quality demanded).

Question 18: Are there any implications of the above approach to liability for non-compliance?

• Yes: 33 (45%)
• No: 7 (10%)
• Don’t know: 17 (23%)
• Not answered: 16 (22%)

Consultation feedback

In response to question 18, 45% thought that there are implications of the approach to liability for non-compliance, while 10% disagreed.

Looking specifically at response breakdown by respondent group type:

• 50% of individuals responded ‘yes’ to this question as did 67% of enforcement bodies, 36% of organisations, 44% of businesses and 40% of trade associations

• 21% of individuals responded ‘no’ to this question as did 17% of enforcement bodies, 7% of businesses and 7% of trade associations

Although 45% of respondents said that there are implications for the proposed approach to liability for non-compliance, most of them agreed with the overall proposed approach in the regulations, including that retailers should be liable and felt it was clearly described. Respondents who said there were no implications commented that further clarity was needed on how enforcement officers will determine whether products are HFSS.

Concerns were raised around reputational damage to retailers in instances where incorrect information on products has been provided mistakenly by manufacturers to retailers resulting in a product being incorrectly classified as a non-HFSS product. Businesses and trade associations asked that retailers should not be held responsible for misinformation provided by the manufacturer.

There were requests from businesses for the development of a common tool to calculate NPM product scores. A trade association explained that this would help address the lack of consistency in outcomes when calculating the NPM score of a product as well as helping smaller companies to calculate scores of products. Respondents asked for clarity on the scope of the liability of retailers selling groceries via out-of-home channels. Other respondents suggested that there should be first line engagement with the Primary Authority.

Discussion

It is important for both businesses and the enforcement agencies ensuring the regulations are being followed to understand what is expected of them to demonstrate compliance. It is also important the regulations are clear about where responsibility lies to ensure that the law has been complied with.

Responses to the original consultation discussed how promotions were typically agreed between manufacturers and retailers. Retailers are the businesses selling the products to the public and responsible for the placement of these products in store and online and therefore the expectation is that compliance with the regulations falls to them. This means that any retailer displaying HFSS products or causes HFSS products to be displayed in a way that does not meet the requirements of the legislation, will be liable, unless an exemption applies.

The government has decided that retailers will be responsible for ensuring the products they promote are compliant. Retailers will need to assess whether each of the products they stock falls within the categories in scope of the restrictions. They will also need to assess whether products are considered HFSS by calculating the NPM score. If the products are deemed in scope, then it will be the responsibility of the retailer to ensure that they comply with the restrictions on promotions as set out in the regulations.

To assist retailers and minimise the burden of this assessment, DHSC will provide guidance to help businesses implement the restrictions. The guidelines set out in the Nutrient Profiling Technical Guidance have been produced to assist food manufacturers and retailers to correctly calculate nutrient profiling scores for their products. This document aims to answer the frequently asked questions about the application of the model to different types of products through a simple guide, Q&A section and worked examples.

There may be some instances where retailers may need to ask manufacturers to provide the NPM score or further information for their products given that retailers may not always have all the nutrient information needed to calculate the NPM score for branded products. Manufacturers may therefore choose to provide NPM scores to retailers if they wish to promote a product that is in a product category within scope, but that is not HFSS due to its NPM score.

Any such information provided by a manufacturer to a retailer should be accurate and should not be misleading. If information provided to a retailer is considered misleading an enforcement authority may take enforcement action against the manufacturer under separate legislation (for example, under section 15 of the Food Safety Act 1990).

DHSC understands a tool that businesses can use to assist in calculating NPM scores would be beneficial. It is investigating the feasibility of such a tool with a view to updating industry on this when further information is available.

Enforcement approach

Question 19: Are the proposed checks appropriate to assess compliance with promotion restrictions?

• Yes: 25 (34%)
• No: 13 (18%)
• Don’t know: 17 (23%)
• Not answered: 18 (25%)

Consultation feedback

In response to question 19, 34% agreed that the proposed checks are appropriate to assess compliance with promotion restrictions, while 18% disagreed.

Looking specifically at response breakdown by respondent group type:

• 71% of individuals responded ‘yes’ to this question as did 50% of enforcement bodies, 18% of organisations, 19% of businesses and 33% of trade associations

• 14% of individuals responded ‘no’ to this question as did 17% of enforcement bodies, 9% of organisations, 26% of businesses and 13% of trade associations

Enforcement bodies who agreed that the proposed checks are appropriate to assess compliance explained that enforcement officers should consult with the Primary Authority where applicable. Some also said that the relevant information should be held at the business’s premises and be readily accessible.

Respondents who disagreed that the proposed checks were appropriate to assess compliance explained that further clarity was needed to understand how enforcement officers will determine whether products are HFSS. Businesses and trade associations also explained the difficulties relating to assessing whether a store is part of a franchise or a symbol group. There were a few suggestions among respondents for the first line of engagement to be with the Primary Authority.

Discussion

Enforcement officers are accustomed to undertaking enforcement activities within retail stores and online. Enforcement officers will be required to make the following checks for volume and location promotion restrictions both in store and online:

• whether the store is part of a medium or large business (where the total number of employees operating under that business name is 50 or more)

• whether the store is a specialist store selling one type of product (exempt from location restrictions)

• whether the internal store size is less than 185.8 square metres (2,000 square feet) (exempt from location restrictions)

• the presence of any products that are part of the ‘in scope’ categories in a restricted volume or location promotion

• if there are products in these categories on volume or location promotions, to ascertain from the retailer how they have ensured that these are not HFSS, as defined by the 2004 to 2005 NPM score

The process for online enforcement will be the same as in store, this is outlined in the regulations. Through further engagement with enforcement officers we have found that they are familiar with enforcement processes for other regulations that have online elements.

We will be providing guidance on what documentation businesses should have on the premises ready to show enforcement officers if they are claiming an exemption. This will save both store managers and enforcement officers time and effort during the enforcement process. From further engagement with enforcement officers it is understood that it is common practice for businesses to prepare documentation to prove they are exempt from certain legislation. This is in the interest of businesses to save time and minimise inconvenience during a site visit.

The guidelines set out in the technical guidance document for the NPM have been produced to assist food manufacturers and retailers to correctly calculate nutrient profiling scores for their products. Enforcement officers will have access to this, and it is our intention to advise local authorities to provide enforcement officers with the necessary training to enable them to handle any disputes arising from NPM scores.

Where a business has a Primary Authority relationship, this may be a good route for discussions to take place to ensure compliance. This will be outlined as a suggestion in guidance, but this will not be appropriate for every business as not all businesses will have a Primary Authority relationship.

Regarding businesses and trade associations concerns relating to assessing whether a store is part of a franchise, or a symbol group, franchises and symbol group businesses will be in scope of the policy. As discussed in questions 13 and 14, given the support they receive and the health benefits to the public by their inclusion in the restrictions, the government has decided to keep the definition in the regulations the same.

Guidance will be provided for enforcement officers to help determine businesses that are in scope of the policy.

Question 20: Are the proposed checks appropriate to assess compliance with free refill restrictions?

• Yes: 22 (30%)
• No: 3 (4%)
• Don’t know: 27 (37%)
• Not answered: 21 (29%)

Consultation feedback

In response to question 20, 30% agreed that the proposed checks are appropriate to assess compliance with free refill restrictions, while 4% disagreed.

Looking specifically at response breakdown by respondent group type:

• 64% of individuals responded ‘yes’ to this question as did 67% of enforcement bodies, 27% of organisations, 11% of businesses and 20% of trade associations

• 14% of individuals responded ‘no’ to this question as did 17% of enforcement bodies

While the respondents who answered ‘yes’ to this question agreed that the proposed checks are appropriate and were clearly outlined, some said that enforcement officers need to be able to verify how the transaction takes place and how self-service drink stations are monitored.

An enforcement body who answered ‘no’ to this question said that the manufacturer needs to be responsible for providing information on whether the product is HFSS.

Discussion

Significantly more respondents agreed that the proposed approach was appropriate to assess compliance with the restriction on ‘free refills’ of sugar-sweetened drinks in scope of the regulations. DHSC would therefore expect that enforcement officers will check:

• the out-of-home business (for example, restaurant) is part of a medium or large business (where the total number of employees operating under that business name is 50 or more)

• the presence of any ‘free refill’ offers on drinks that are in scope of the regulations

• if there are free refills offered on drinks, to ascertain from the business how they have ensured that these are not HFSS, as defined by the 2004 to 2005 NPM score

Where an enforcement officer considers that a ‘free refill’ of sugar-sweetened drink may be being promoted, they should request further information to verify the promotion and the drink in question. DHSC plans to share draft guidance with industry to provide further clarity on how these restrictions will need to be implemented in practice.

Penalties for non-compliance

Question 21: Should local authorities issue improvement notices in cases of non-compliance with promotions restrictions as the first formal action?

• Yes: 33 (45%)
• No: 6 (8%)
• Don’t know: 14 (19%)
• Not answered: 20 (27%)

Consultation feedback

In response to question 21, 45% agreed that local authorities should issue improvement notices in cases of non-compliance with promotions restrictions as the first formal action, while 8% disagreed.

Looking specifically at response breakdown by respondent group type:

• 71% of individuals responded ‘yes’ to this question as did 67% of enforcement officers, 36% of organisations, 33% of businesses and 40% of trade associations

• 7% of individuals responded ‘no’ to this question as did 17% of enforcement bodies, 11% of businesses and 7% of trade associations

Respondents who answered ‘yes’ and ‘no’ to this question agreed that advice and guidance should be given to retailers before issuing an improvement notice. There was consensus among those who answered ‘yes’ that improvement notices were the appropriate first formal action. Suggestions given by respondents who answered ‘no’, included:

• enforcement officers engaging with the business’s Primary Authority partner before taking any enforcement action in accordance with the RESA
• repeat offences counted based on the individual premises as opposed to the overall retail business

It was noted by one enforcement body that if a non-compliant promotion ran for over 14 days (which is the period between the service of an improvement notice and an offence being committed), then improvement notices may not be appropriate and instead, banning promotions of this nature that exceed 14 days and then imposing an FMP if they exceed 14 days may be a better approach.

Discussion

In line with the consultation feedback, as an alternative to prosecution for non-compliance for promotions restrictions, 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 of non-compliance, 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. This will be made clear in future guidance.

Question 22: Are there other circumstances where an improvement notice may not be appropriate?

• Yes: 24 (33%)
• No: 9 (12%)
• Don’t know: 18 (25%)
• Not answered: 22 (30%)

Consultation feedback

In response to question 22, 33% agreed that there are other circumstances where an improvement notice may not be appropriate, while 12% disagreed.

Looking specifically at response breakdown by respondent group type:

• 29% of individuals responded ‘yes’ to this question as did 67% of enforcement bodies, 36% of organisations, 30% of businesses and 27% of trade associations

• 29% of individuals responded ‘no’ to this question as did 17% of enforcement bodies, 11% of businesses and 7% of trade associations

Respondents who answered that there were no circumstances where an improvement notice may not be appropriate provided no further comments.

There were some enforcement bodies who believe there are some circumstances where an improvement notice does not go far enough, for example when there are repeat offences. There was also a suggestion from enforcement bodies that there should be a provision to require businesses to stop selling the specified foods in a contravening manner while the store is brought back into compliance. It was raised by some organisations and enforcement bodies that issuing a formal notice rather than a penalty for non-compliance weakens the policy and could encourage retailers to display promotions for a short term, knowing they will first be issued with a formal notice. Organisations and enforcement bodies suggested that local authorities should issue penalty fines for second or further offences as a formal notice would not be appropriate for repeat offenders. It was also suggested by an organisation that once the policy is well- established, issuing a formal notice rather than a penalty for non-compliance weakens the policy.

Businesses and trade associations were in favour of a pragmatic process of advising retailers over issuing improving notices. They asked that this approach take precedence particularly for first offences that can be quickly and easily resolved, or when it is clear that a retailer has genuinely made a mistake.

Discussion

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

We will evaluate the policy after its introduction, including how the policy is being enforced and whether a light-touch approach is sufficient to ensure compliance. DHSC will consider whether the enforcement approach is having the desired impact on preventing promotions of HFSS food and drink or if alternative or additional measures and penalties may be required to address issues that may arise, such as repeat offences.

It will be advised for local authorities to be pragmatic in their enforcement approach and discuss areas where businesses may not be compliant with regulations, issuing improvement notices where necessary. The guidance document will make it clear that the enforcement process will focus on supporting compliance rather than penalising non-compliance.

Question 23: Where a business fails to meet the terms of an improvement notice is a fixed monetary penalty of £2,500 appropriate?

• Yes: 18 (25%)
• No: 18 (25%)
• Don’t know: 16 (22%)
• Not answered: 21 (29%)

Consultation feedback

In response to question 23, 25% agreed that, where a business fails to meet the terms of an improvement notice, an FMP of £2,500 is appropriate, while 25% disagreed.

Looking specifically at response breakdown by respondent group type:

• 36% of individuals responded ‘yes’ to this question as did 83% of enforcement bodies, 9% of organisations, 22% of businesses and 7% of trade associations

• 50% of individuals responded ‘no’ to this question as did 27% of organisations, 19% of businesses and 20% of trade associations

Among respondents who felt that £2,500 was an appropriate FMP, there was a suggestion from a trade association that there should be an option to enforce an FMP without having to issue an improvement notice in the first instance, to cover circumstances where there is a more serious offence, or where there are repeated breaches.

Businesses and trade associations who felt that £2,500 was not an appropriate FMP explained that this was a small amount for multinational food businesses but excessive for small businesses. In this regard, their preference was that the penalty should be proportionate to business size and there should be payment increments as a result of non-compliance. Businesses and trade associations recommended reducing the starting point for fines and reviewing the number of fines issued after 3 years of the policy being implemented.

Question 24: Are there circumstances where a different approach might be more appropriate?

• Yes: 20 (27%)
• No: 6 (8%)
• Don’t know: 24 (33%)
• Not answered: 23 (32%)

Consultation feedback

In response to question 24, 27% agreed that there are circumstances where a different approach may be more appropriate, while 8% disagreed.

Looking specifically at response breakdown by respondent group type:

• 57% of individuals responded ‘yes’ to this question as did 67% of enforcement bodies, 9% of organisations, 15% of businesses and 20% of trade associations

• 7% of individuals responded ‘no’ to this question as did 17% of enforcement bodies, 9% of organisations and 11% of businesses

Respondents who said there were no circumstances where a different approach might be more appropriate explained that a consistent approach should be applied to all businesses.

Among respondents who felt there are circumstances where a different approach might be more appropriate explained that any fine needs to be proportionate to business size. It was suggested by a trade association that where there are repeated offences, there should be an option to enforce an FMP without having to issue an improvement notice in the first instance.

Discussion for questions 23 and 24

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

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

We have considered introducing a weighted system of fines, increasing for each repeat infraction, however this approach would add complexity to enforcement of the policy and is uncommon in other regulations 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 FMP 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.

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 promotions would not pose the same immediate threat to health as allergen and food hygiene regulations, a criminal prosecution resulting in the same level of fine would be disproportionate. Therefore, we propose that in the first instance local authorities may serve businesses that fail to comply with an improvement notice, and then an FMP of £2,500, as an alternative to prosecution. Local authorities may consider criminal offences in cases where an FMP has proved ineffective.

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, 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 measure for this policy.

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 an FMP in a way which is proportionate, consistent and targeted only at cases in which action is needed.

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

• Yes: 34 (47%)
• No: 3 (4%)
• Don’t know: 15 (21%)
• Not answered: 21 (29%)

Consultation feedback

In response to question 25, 47% agreed that 28 days is an appropriate period to make representations and objections or to discharge liability for a Notice of Intent, while 4% disagreed.

Looking specifically at response breakdown by respondent group type:

• 79% of individuals responded ‘yes’ to this question as did 67% of enforcement bodies, 18% of organisations, 41% of businesses and 40% of trade associations

• 7% of individuals responded ‘no’ to this question as did 17% of enforcement bodies and 9% of organisations

Among respondents who agreed that 28 days is an appropriate period, some comments were that further clarification was needed on when the 28-day period commences. It was suggested that the retailer should comply with the terms of the notice pending the outcome of any appeal.

Some respondents who felt 28 days was not an appropriate period said given that promotional periods rarely last 28 days, it could be more appropriate to have a shorter period of 14 days. Conversely, one enforcement body commented that 28 days may not be long enough to gather evidence about the nutrient profile score of a disputed product.

Discussion

In line with the consultation responses, 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 to 28-day period. We believe this period 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.

The 28 days begin on the day on which the notice was received. This will be made clear in the regulations.

Question 26: Where a fixed monetary penalty has been issued, for example, for failure to comply with an improvement notice, 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: 26 (36%)
• No: 6 (8%)
• Don’t know: 20 (27%)
• Not answered: 21 (29%)

Consultation feedback

In response to question 26, 36% agreed that a person should be able to discharge liability upon being issued with an FMP at a rate of 50% of the penalty issued, while 8% disagreed.

Looking specifically at response breakdown by respondent group type:

• 50% of individuals responded ‘yes’ to this question, as did 50% of enforcement bodies 9% of organisations, 37% of businesses and 33% of trade associations

• 14% of individuals responded ‘no’ to this question, as did 17% of enforcement bodies, 18% of organisations and 4% of businesses

Respondents who answered that a person should be able to discharge liability upon being issued with an FMP at a rate of 50% of the penalty issued felt that this was standard practice and consistent with other approaches for other similar offences.

Some respondents who said a person should not be able to discharge liability upon being issued with an FMP at a rate of 50% of the penalty issued said that businesses will have been given sufficient warning of non-compliance, and an opportunity to rectify within an adequate period of time, which they have chosen not to address. One enforcement body said that they did not think the resulting FMP was a sufficient deterrent.

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 23.

Question 27: Is 28 days an appropriate length of time to pay or appeal a final notice?

• Yes: 34 (47%)
• No: 2 (3%)
• Don’t know: 16 (22%)
• Not answered: 21 (29%)

Consultation feedback

In response to question 27, 47% agreed 28 days an appropriate length of time to pay or appeal a final notice, while 3% disagreed.

Looking specifically at response breakdown by respondent group type:

• 86% of individuals responded ‘yes’ to this question as did 67% of enforcement bodies, 18% of organisations, 37% of businesses and 40% of trade associations

• 7% of individuals responded ‘no’ to this question as did 9% of organisations

Respondents who agreed 28 days is an appropriate length of time to pay or appeal a final notice felt that it is more appropriate for local authorities to follow the existing process outlined in RESA.

One respondent felt 28 days was not an appropriate length of time to pay or appeal a final notice, suggesting that 14 days is enough as companies would have been given enough warning of non-compliance.

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 should also address concerns raised about allowing businesses time to process payments through their financial structures.

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

• Yes: 26 (36%)
• No: 10 (14%)
• Don’t know: 16 (22%)
• Not answered: 21 (29%)

Consultation feedback

In response to question 28, 36% agreed that failure to pay or appeal a penalty within 28 days should result in the penalty being increased by 50%, while 14% disagreed.

Looking specifically at response breakdown by respondent group type:

• 57% of individuals responded ‘yes’ to this question as did 67% of enforcement bodies and 18% of organisations, 22% of businesses and 40% of trade associations

• 36% of individuals responded ‘no’ to this question as did 9% of organisations and 15% of businesses

Respondents including organisations and enforcement bodies who agreed failure to pay or appeal a penalty within 28 days should result in the penalty being increased by 50% felt that it was good to have an additional incentive to pay the fine on time and encourage future compliance.

A business who disagreed failure to pay or appeal a penalty within 28 days should not result in the penalty being increased by 50% felt that it was disproportionate and non-standard practice. An individual said it would be wrong to increase a penalty when an appeal is in process and another businesses explained that if there are circumstances that have prevented compliance within that period there should be no additional penalty charge providing that the retailer and the enforcing agent are able to agree on a reasonable revised compliance date.

One enforcement officer who responded ‘I don’t know’ said that failure to pay the fine should be penalised but businesses should not be deterred from appealing if they have grounds to do so.

Discussion

In line with other regulations that use 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.

Additional requirements

Question 29: Are there any circumstances where it might be inappropriate for local authorities to publish details of cases where a civil sanction has been imposed?

• Yes: 12 (16%)
• No: 13 (18%)
• Don’t know: 26 (36%)
• Not answered: 22 (30%)

Consultation feedback

In response to question 29, 16% agreed that there were circumstances where it might be inappropriate for local authorities to publish details of cases where a civil sanction has been imposed, while 18% disagreed.

Looking specifically at response breakdown by respondent group type:

• 29% of individuals responded ‘yes’ to this question as did 17% of enforcement bodies, 19% of businesses and 13% of trade associations

• 50% of individuals responded ‘no’ to this question as did 33% of enforcement bodies, 27% of organisations and 4% of businesses

Organisations who said there were no circumstances where it might be inappropriate for local authorities to publish details of cases where a civil sanction has been imposed stated that transparency is welcomed. These organisations explained public reporting acts as a deterrent and comprehensive reporting of breaches will be important for evaluation processes. It was also mentioned that it could be beneficial to businesses who work hard to comply.

Businesses and trade associations who said there are circumstances where it might be inappropriate for local authorities to publish these details explained that no publication should take place until any appeal has been resolved. There were some concerns about security risks of publication particularly in airports with some businesses and trade associations explaining that any details published would have to respect airport security requirements.

Discussion

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

• Yes: 19 (26%)
• No: 1 (1%)
• Don’t know: 30 (41%)
• Not answered: 23 (32%)

Consultation feedback

In response to question 30, 26% agreed that the additional requirements will place additional costs on their local authorities, while 1% disagreed.

Looking specifically at response breakdown by respondent group type:

• 29% of individuals responded ‘yes’ to this question as did 67% of enforcement bodies, 64% of organisations, 11% of businesses and 7% of trade associations

• 7% of individuals responded ‘no’ to this question

Most respondents who agreed that the additional requirements will place additional costs on their local authorities said that any new enforcement regime places costs on local authorities. This includes officer time involved in inspections and enforcing the regulations, officer training, creating appropriate notices, publishing guidance and details of cases will all contribute to increased costs. There were repeated concerns raised that there have been substantial budget cuts to local authority trading standards bodies.

Discussion

We recognise the additional requirements and burden that this policy could place on local authorities. Regarding costs to local authorities, the department considers new burdens as standard practice. Estimated additional costs falling on local authorities have been assessed in accordance with the guidance on new burdens.

The government is committed to making the healthier choice the easy choice for families. This policy can significantly improve our food environment by ensuring healthier food is more widely available, more easily accessible and more visible in shops, and ultimately support people to lead healthier lives.

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 the aftermath of the COVID-19 pandemic.

Further consultation feedback

Question 31: Are there any comments on the draft of the regulations?

There were further comments and suggestions on the specific wording of the regulations to improve clarity. Revisions to the regulations have been made to make the policy easier to implement and enforce, taking feedback from the consultation responses into consideration. Further clarity and examples will be provided in the guidance.

There were requests for a further consultation on the amended regulations. DHSC has engaged with stakeholders throughout the consultation period on their concerns and have clarified any issues with stakeholders where appropriate.

It was suggested that the manufacturer must be legally obligated to tell retailers if their products are HFSS (and therefore in scope of the policy restrictions). As outlined in the response to question 18, any such information provided by a manufacturer to a retailer should be accurate and should not be misleading. This includes information that is needed to calculate the NPM score. If information provided to a retailer is considered misleading an enforcement authority may take enforcement action against the manufacturer under separate legislation (for example, they may consider their powers under section 14 of the Food Safety Act 1990, which prohibits selling food not of the nature or substance or quality demanded).

Respondents suggested enforcement officers must inform Primary Authorities of any issues raised. Primary Authority relationships have been developed to assist businesses. We will recommend in guidance that businesses with a Primary Authority relationship may wish to consult with their Primary Authority where appropriate regarding an improvement notice served.

Question 32: Are there any comments on the revised costs for enforcement in the impact assessments?

No relevant comments were given in response to this question.

Question 33: Are there any areas that need to be specified in guidance to allow businesses to implement the policy successfully?

Respondents requested guidance on how to calculate NPM scores. As discussed in question 16, there is a technical guidance document for the NPM.

The guidelines set out in this document have been produced to assist food manufacturers and retailers to correctly calculate nutrient profiling scores for their products. This document aims to answer the frequently asked questions about the application of the model to different types of products through a simple guide, Q&A section and worked examples.

Respondents requested specific guidance for specialist retailers, for example those in travel hubs. Our intention is for the guidance to be relevant to all retailers and will include specific advice for retailers in travel hubs or those with unique layouts or store layouts.

Question 34: Are there any areas that need to be specified in guidance to allow enforcement agencies to implement the policy successfully?

The following areas were raised by respondents as areas that needed to be specified in guidance to allow enforcement agencies to implement the policy successfully:

• methods of measurement and the points measurements are taken from

• how to measure the exclusion zones for location promotion restrictions

• case studies, pictures and diagrams

A detailed and comprehensive guidance document will be shared with businesses for their consideration.

Question 35: 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 issues for consideration in line with this policy, namely a review of the legislation, concerns around calculating NPM scores, safeguarding of the policy and how the regulations apply to the travel retail sector.

With regards to the review process, it was suggested that a review should take place so that the legislation can be updated to reflect future innovations in promotions. Respondents requested that this policy was independent, transparent and with clear parameters to determine what success looks like.

In addition to our duty under the RESA to review the regulations, we are required to carry out a review of the regulatory provisions within 3 years of them coming into force and publish a report setting out the conclusions of this review. That review will consider whether RESA penalties have been implemented effectively and achieve their objective. This is in addition and separate to the post implementation review.

A post-implementation review (PIR) will therefore be conducted for this policy. A PIR is a type of evaluation of regulatory policy which seeks to review and inform next steps in policy development. A PIR will establish whether, and to what extent, the regulation has achieved its original objectives and if these remain appropriate. It also considers if the regulation is still required and remains the best option for achieving those objectives, or if it could be achieved in another, less onerous or burdensome way. Government departments must complete PIRs of regulatory policies due to a statutory review clause included in legislation. Reviews are normally completed within 5 years of the regulatory measure coming into force and on a repeated 5-year cycle thereafter, or according to any statutory deadlines.

Concerns were raised about determining the NPM score of products both for retailers who may not have access to recipe information and for enforcement officers. The guidelines set out in the NPM technical guidance document have been produced to assist food manufacturers and retailers to correctly calculate nutrient profiling scores for their products. This document aims to answer the frequently asked questions about the application of the model to different types of products through a simple guide, Q&A section and worked examples.

Several organisations raised concerns about safeguarding this policy within the trade agreements that are currently being renegotiated. As the restrictions on ‘on pack’ promotions related to labelling, we were required to submit a notification to the World Trade Organization as a Technical Barrier to Trade. The review period for this notification has now closed.

There were concerns raised about how the regulations pertaining to the travel retail sector given the specific characteristics of these types of stores. Our guidance will be relevant to all retailers in scope of the policy and will include specific advice for retailers’ unique layouts.

Respondents were keen to engage with government to ensure the technical definitions and the text of the draft regulations are fit for purpose. We have worked with stakeholders on the drafting of the regulations and guidance to ensure the technical definitions and the text of the draft regulations are fit for purpose.

There were other comments about policy decisions. The most notable were concerns about the implementation timeline. This consultation was targeted at the enforcement of the restrictions and was designed to ensure that the legislation is clear and unambiguous and can be implemented effectively once enacted. Issues concerning the government’s approach to store size exemptions and qualifying businesses, were addressed in the first consultation. However, having considered industry’s feedback, we have made the decision to extend the implementation date of this policy to allow businesses enough time to prepare for these novel restrictions. We understand this is a significant change and we want to ensure we are supporting businesses in implementing these new regulations. So, our intention is for these regulations to come into force in October 2022. We will continue to review the restrictions as part of the post-implementation review to ensure that they are fit for purpose.

Policy summary

Assessing compliance

We expect local authorities to check for:

• qualifying businesses

• the presence of volume price promotions of HFSS foods in store and online in qualifying businesses

• the presence of HFSS promotions in store entrances, aisle ends and checkouts and their online equivalents (entry pages, landing pages and checkout pages)

Where an enforcement officer considers that a business may be in scope of the policy or an HFSS product is being incorrectly promoted, they should request further information to verify the details of the qualifying business and/or the NPM score of the product provided.

We will be providing guidance on the documentation that we advise is kept on the store’s premises for enforcement officers if a business is claiming an exemption. This will reduce burden on both store managers and enforcement officers.

Penalties for non-compliance

In response to a business’s non-compliance with the promotion 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 an 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 an 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 an FMP 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 has carefully considered all the consultation responses from industry and health organisations to inform its thinking and next steps on this policy.

The government is committed to ensuring enforcement of regulatory policies is proportionate and fair. We have listened to feedback from industry and understand the importance of allowing businesses enough time to prepare for these novel restrictions. We understand this is a significant change and we want to ensure we are supporting businesses in implementing these new regulations. So, our intention is for these regulations to come into force in October 2022.

The government intends to use powers in the Food Safety Act 1990 to lay secondary legislation before Parliament by July 2021 allowing for an implementation period before the restrictions come into force in October 2022. We will continue to work with trade associations and local authorities to ensure businesses are supported in implementing the new requirement ahead of it coming into force.

We will work with trade associations, businesses and local authorities to develop guidance on complying with the regulations to help businesses to plan ahead. We recognise that these restrictions will be a novel requirement for businesses, however, we do not want to delay this policy as this will mean the health benefits of the policy will be delayed.

In addition to our duty under the RESA to review the regulations, we are also required to undertake a further post implementation review of the regulations every 5 years and publish a report setting out the conclusions of the review.

1. PHE (2018). Calorie reduction: The scope and ambition for action (accessed 7 April 2021.) ↩ ↩²

2. NHS Digital. (20172020). National Child Measurement Programme 2017/2019/20. ↩

3. OECD. (2017). Health at a glance 2017: OECD Indicators. Paris: OECD Publishing. ↩

4. Simmonds, M, Llewellyn and others. (2016). Predicting adult obesity from childhood obesity: a systematic review and meta analysis. Obesity reviews, 17(2), 95 to 107. ↩

5. Guh and others. (2009). The incidence of co-morbidities related to obesity and overweight: a systematic review and meta-analysis. BMC Public Health, 9(1), 88. ↩

6. Scheen, A J. (2002). Obesity and liver disease. Best Practice and Research Clinical Endocrinology and Metabolism, 14(4), 703 to 716. ↩

7. PHE and Food Standards Agency National Diet and Nutrition Survey (NDNS) 2018 (last accessed 5 March 2020). ↩

8. The Obesity Health Alliance. Out of place: the extent of unhealthy foods in prime locations in supermarkets. November 2018. ↩