Restricting the promotion of HFSS products

5th March 2021

The UK Obesity Strategy was launched by Government in the summer of 2020 and contained the following proposals:

• introduction of a new campaign calling for everyone who is overweight to take steps to move towards a healthier weight, with evidence-based tools and apps with advice on how to lose weight and keep it off;
• working to expand weight management services available through the NHS, so more people get the support they need to lose weight;
• publishing a 4-nation public consultation to gather views and evidence on our current ‘traffic light’ label to help people make healthy food choices;
• introducing legislation to require large out-of-home food businesses, including restaurants, cafes and takeaways with more than 250 employees, to add calorie labels to the food they sell;
• consulting on its intention to make companies provide calorie labelling on alcohol;
• banning the advertising of foods high in fat, sugar or salt (HFSS) being shown on TV and online before 9pm and consulting on how to introduce a total HFSS advertising restriction online; and
• legislating to end the promotion of HFSS products by restricting volume promotions such as buy one get one free, and the placement of these foods in prominent locations intended to encourage purchasing, both online and in physical stores in England.

Of all the proposals, the restrictions on HFSS promotions has progressed the furthest. Having decided to legislate to restrict pre-packed HFSS promotions, in December 2020 Government ran another consultation seeking views on how best to enforce the restriction. Draft legislation was proposed to restrict the promotion of multibuy HFSS products as well as restrict the promotion of HFSS products in shop entrances, aisle ends and checkouts for shops over 185.8 square metres (2,000 square feet) and in the equivalent locations online. Online restrictions will include entry pages of a retailer’s website or grocery page, landing pages when the customer is browsing other categories of food and pages where customers view their shopping basket or proceed to payment. The restrictions will only apply to pre-packed food and drink so, for example, pre-packed cakes would be caught but not those baked in store.

This most recent consultation was not seeking to revisit policy decisions but to ensure that the legislation was clear and unambiguous and could be implemented effectively once enacted. The consultation, which ended on 22 February, asked for views on:

• the proposed technical definitions of the locations; and
• the text of the draft regulations.

Although responses to the consultation have not yet been published on the gov.uk website, reports in the food and drink press suggest that opposition to the legislation is still strong. One such report suggested that the proposed ban on HFSS promotions could cost the convenience sector more than £90 million. Government has been urged to rethink the size exemptions and instead exempt stores that are less than 3,000 square feet rather than the current 2,000 square feet.

WM comment

The planned restrictions are due to come into force in April 2022 and we will have to wait and see whether Government continues with the legislation as currently drafted. Since Government has been warned by the Food and Drink Federation that there could be court challenges launched by food and drink manufacturers which are opposed to the legislation, it is possible that Government may still have time for a rethink.