Promoting HFSS products restricted from October 2022

Date : 29 July 2021

Hannah Skeggs

Nutrition & Scientific Affairs Manager

Restrictions on promoting foods high in fat, salt and sugar will come into force October 2022. What do we know now?

The Government aims to halve childhood obesity by 2030, which is no small task when more than 1 in 5 children in Reception is overweight or obese, rising to 1 in 3 by Year 6.

To help achieve this target, the spotlight has fallen on restricting promotions of foods and drinks high in fat, sugar and salt, which could encourage excessive consumption. Currently, promotions are skewed towards encouraging less healthy options, and volume promotions lead us to buy around 20% more food than we otherwise would1.

In December 2020, the Government announced it would be restricting promotions of HFSS products by location and volume price promotions.

We summarised the proposed restrictions in detail here – but many questions were left unanswered making it hard for industry to prepare.

New updates on HFSS are now available, and restrictions have been delayed allowing more time for implementation.

Last week, the Government published a response to the policy enforcement consultation on reducing promotional activity on foods high in fat, salt and sugar.

This technical enforcement consultation aims to make the legislation clear so that it can be implemented effectively once enacted. They also laid the draft regulations, providing more clarity on some frequently asked questions.

The headlines

  • The regulations will now come into force in October 2022, not April, giving industry more time to prepare (*Assuming this is passed in parliament)
  • Retailers will be liable if something is incorrectly promoted, placing the onus on them to calculate HFSS scores. However, if information provided to a retailer is misleading, enforcement action may then be taken against the manufacturer.
  • If regulations aren’t adhered to, an improvement notice can be served. Failing to comply within 28 days of an improvement notice can lead to a £2500 Fixed Monetary Penalty.
  • Local authorities have the powers to impose these penalties and The Department of Health and Social Care (DHSC) will be funding enforcement activities.

The guidance has also provided clarity on some of the most frequently asked questions:

  • What is a small store?

    Small stores will not face the same restrictions on placement promotions as larger stores and online retail.

    Several consultation respondents asked that small stores be classed as under 3.000 sqft to align with Sunday Trading Rules. This would exclude 2,761 stores from restrictions.

    The proposal was rejected by DHSC and a small store continues to be defined as below 2,000 sq ft.
  • How can I calculate the size of a store?

    Calculating the size of a store is not as simple as it sounds, as some areas are out of scope.

    Some rules on how to calculate the ‘relevant floor area’ of a store have been published – although further guidance is expected.

    For now, the government has decided to exempt the following parts of stores from the ‘relevant floor area’:
    • Those not used for displaying goods or for serving customers
    • Those selling food for immediate consumption, 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)
    • Space occupied by another business or concession, but only where the concession operates its own payment facilities

In future, information about the relevant floor area of a store must be available to enforcement officers who visit stores. Guidance is being prepared by DHSC on how this can be shared.

  • What is the ‘front of store?’

    If a store is larger than 2,000 square feet, HFSS products within the restricted categories will not be eligible for placement at the front of store, on gondola ends or at store checkouts.

    Understandably many have wondered what the front of store means.

    Key update for retail – the definition of front of store has reduced from 5% to 3% of a store’s square footage.

    The distance from the store entrance, in which HFSS products cannot be placed is the smaller of either:
    • 15 metres or
    • The square root of (0.03 x total store area)

This prohibited distance will be measured in any direction from the midpoint of the entrance, resulting in a semi-circle shape where HFSS products must not be placed.

There will not be exemptions for stores with multiple entrances – all entrances will be subject to restrictions.

There will not be exemptions for stores with no doors – for example, an open archway is still considered an entrance.

  • What about meal deals?

    Meal deals have always been exempt from volume price promotion restrictions but must still adhere to the location restrictions.

    As a result of feedback from the consultation, the regulations are now explicit that both ‘lunchtime meal deals’ and ‘dine in for 2’ offers are exempt from volume price promotion restrictions.
  • When will government review the restrictions?

    This is not a short-term policy - the impact will be reviewed at least every 5 years.

What’s next?

Whilst the regulations for this policy have been drafted, it has not yet been passed in parliament. This must take place prior to restrictions coming into force in October 2022.

Many are eagerly awaiting publication of DHSC’s Guidance for industry document, which will help businesses prepare for implementation.

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

Once this information is available, we’ll be sure to update you!

If you have any questions in the meantime, please get in touch at [email protected]