Latest developments on HFSS

Date : 28 July 2022

Lizzy McHugh

Health and Sustainable Diets Associate

With 2 months until HFSS regulations come into force, we explore latest update such as how devolved nations will implement, and how the nutrient profiling model is being challenged in court.

HFSS really hit the media in May, when Jamie Oliver branded the government U-turn on some aspects of legislation an eton mess. Industry were quick to respond, with retailers such as Tesco and Sainsbury’s publicly committing to remove BOGOF type offers from store, despite it not being mandatory.

As industry now race towards implementation on the 1 October, what has been going on behind the scenes?

Legislation divergence across home nations

It’s become clear that there could be some differences in how HFSS restrictions may be implemented between England, Scotland and Wales. Whilst England has laid legislation on HFSS, Wales and Scotland have recently published results from public consultations and announced further considerations that they are looking to gather feedback on from.

At the start of July, the Scottish Government published the results from their initial consultation1. In addition to the same restrictions which will be implemented in England, the report included discussions around:

  • Including meal deals in the restricted promotions
  • Expanding location restrictions to include islands and bin displays
  • Which product categories should be included
  • Whether temporary price restrictions should be included in the banned offer

Wales are consulting on how their HFSS restrictions could look as a two stage process. The first stage collects feedback until September 2022, with additional evidence gathering around implementation during Winter 20222. The outline of their proposal includes the below in addition to what has been discussed for England:

  • Restricting value-based promotions in addition to volume price promotions. These include temporary price reductions, multi buy offers, volume based offers and meal deals
  • Temporary price reductions are justified in the report as they form the majority of offers on food. Reductions on close to use-by products would be excluded, to reduce potential food waste
  • Consulting on whether all categories should be included or just those of most relevance to childhood obesity

In summary both Scotland and Wales look to expand the HFSS restrictions to cover more types of promotions and potentially more locations than will be put in place to England. No information has been given yet on when this legislation is likely to be put in place in the devolved nations.

Defending of the nutrient profiling model in court

In April this year Kellogg’s took the Department of Health and Social Care to high court because they argued that HFSS restrictions did not acknowledge how a product was commonly consumed – specifically that their cereals were generally served with milk, which they argued would provide nutritional value. They were critical of the model used to score whether a product is classed as HFSS, the nutrient profiling model.

The recent ruling rejected these comments and the idea that adding milk to these products changes their health credentials. As part of the court ruling, the Judge backed the nutrient profiling model as a previously tried and tested model, which may suggest that there is little room for other companies to contest the effectiveness of the model. The Judge also commented that there had been ample opportunities in the reviews of the HFSS restrictions for industry to raise any concerns and those that were raised were properly considered by government as part of its process.

This ruling suggests that any further attempts by industry to argue against HFSS policies or to discredit the nutrient profiling model will not be taken forward and instead industry should prepare to implement the restrictions or reformulate.

See further information on how HFSS restrictions are driving innovation.