Promotion and placement of foods – are you ready for the new rules?

14th January 2022

Restrictions on the sale of pre-packed foods that are high in fat, sugar and salt (HFSS) have been on the agenda for several years and on 2 December 2021, the Food (Promotion and Placement) (England) Regulations 2021 (the Regulations) were eventually made. The Regulations come into force on 1 October 2022 and place restrictions on the promotion and placement of certain foods.

The Regulations, which despite the widespread references to HFSS foods in guidance and the press, don’t actually use the phrase ‘foods high in fat, salt and sugar’, but instead set out restrictions on where ‘specified foods’ may be placed in store and offered online. ‘Specified foods’ are listed in Schedule 1 of the Regulations and are defined as ‘less healthy’. A ‘less healthy’ food is one which scores four or more points according to the Nutrient Profiling Guidance (NPG). A ‘less healthy’ drink is one which scores one or more points according to the NPG. An HFSS food or drink will usually score four (for food) or one (for a drink) under the NPG. The use of the NPG to identify products to restrict is an attempt to avoid placing restrictions on a product that may be HFSS but not necessarily a risk factor in contributing to obesity and in some cases beneficial or necessary to maintaining a healthy diet (such as avocados, cheese and almonds). The ‘specified foods’ approach is an attempt to ensure that non-junk food is not included in the restrictions.

Who do the Regulations apply to?

The Regulations apply to retailers (including their franchises) which offer prepack foods for sale to customers but do not apply to manufacturers. A prohibition on free refills also applies to restaurants. Charities providing food for free are exempt and so are micro and small businesses (those with less than 50 employees). Stores that are smaller than 2000 square feet and specialist shops that sell one type of food product are exempt from the location restrictions.

What are the restrictions?

Retailers must not:

• offer ‘specified food’ as part of a volume price promotion (for example, “buy one get one free” or “3 for 2”) either in-store or online
• place ‘specified food’ in prominent locations in-store, including at store entrances, aisle ends and checkouts
• promote ‘specified food’ in certain locations online, including on home pages, while a consumer is searching products other than ‘specified foods’, on a pop-up page or on shopping basket / payment pages
• offer free in-store refills of certain non-pre-packaged sugar-sweetened drinks.

Enforcement

Local authorities will enforce the restrictions serving an improvement notice if they have reasonable grounds to believe there is a compliance failure. Failing to comply with an improvement notice is a criminal offence punishable by a fine. A food authority may also issue a fixed monetary penalty of £2,500.

WM Comment

Food retailers will need to assess to what extent they are affected and communicate it clearly within the business in time for the October deadline. Stock will need to be identified as ‘specified food’ and store layouts will need to be assessed to make sure that the Regulations are complied with. In addition, employees will need to be trained so that they know where products can be displayed.