UK Government publish HFSS guidance

Abi Roman

Despite hopes that HFSS legislation might be delayed, the Government is forging ahead with its restrictions by publishing further guidance on the planned new laws that will come into effect from 1st October 2022. It is all  part of the Government’s desire to reduce obesity levels by encouraging shoppers to switch to healthier options instead.

The new regulations will outlaw the placement of HFSS (high Fat, Sugar, or Sodium) products at, or within two meters of, store entrances, aisle ends, checkouts and their online equivalents. In addition, there will be a ban on retailers offering deep cut price promotions such as ‘three for two’ or ‘buy one get one free.’

The Department of Health’s latest guidance explains how the new promotion and placement requirements will work for the businesses implementing them and the authorities enforcing them. The extent of clarification is quite broad and includes;

  • All retailers selling food and drink are in scope – the new rules are not limited to supermarkets and can include garden centres, DIY stores, pharmacies and even hospital shops.
  • However, the rules only apply to stores with more than 50 employees, and/or stores with more 2,000 sq. ft of selling space. The space taken up by a concession, e.g., a post office or a coffee bar, do not count towards the floor area.
  • Composite or ‘ready’ meals are in scope even if their individual components might not be. So, sausages are out of scope, but a sausages and mash ready meal would be in scope.
  • Hampers or prepacked food selections are only in scope if one of the items is a specified food that is in scope e.g. jam and scones or a curry and rice ready meal.
  • Care is required if offering incentives buying more products e.g., buy three and get 1,000 loyalty points would be considered over incentivising, in comparison to the same points being offered for just one item or, safer still, only on non-HFSS products.
  • Whilst multipacks are not in-scope, offering deep cut price promotions on multipacks themselves is restricted e.g., ‘buy two multipacks for the price of one.’
  • Retailers still have until October 2023 to sell off existing stock with restricted volume promotions if the packaging cannot be removed.
  • The rules only apply to stores with more 2,000 sq. ft of selling space, The space taken up by a concession, e.g., a post office or a Coffee bar, do not count towards the floor area
  • Displays such as dump bins, alcoves and off-fixture displays are out of scope of the restrictions on promotions unless they display specified food and are within 50cm of an aisle end display
  • If a store has multiple entrances, the store entrance calculation must be applied to every entrance to the main shopping area
  • For those selling online, a home page can feature banners with restricted food if it is simply signposting to a taxonomy page, one that hosts that particular type of product, e.g., confectionary.
  • The rules apply to businesses with more than fifty employees – that that number is based on all employees, regardless of their location. So those in the Republic of Ireland would still count.
  • Although vending machines operated by a different business are not subject to location restrictions, retailers are encouraged not to put vending machines selling HFSS products in restricted areas of their stores.

Enforcement

The guidance confirms that enforcement will be the responsibility of local authority Food Officers. The officers will be tasked with checking:

  • If stores are part of a business with more than fifty employees
  • Whether the relevant floor area of the store is less than 2,000sq ft
  • If there are products that are part of the food in scope categories in a restricted volume price or location promotion in-store
  • If there are products in these categories on volume price or location promotions, how you have ensured that these are not HFSS or ‘less healthy’ as defined by the guidance.

The guidance encourages the enforcement officers to be pragmatic and focus on supporting compliance (by issuing improvement notices) rather than penalising non-compliance (by fines). However, retailers who fail to comply with such notices can receive a fixed penalty of £2,500.

It has been recently reported that local authorities have had few or no businesses seeking advice about HFSS legislation. Waiting until the last minute is not a smart move and retailers need to start planning and preparing now. The new guidance provides some answers to lingering questions, however there is still much room for interpretation which will be left up to the enforcement officers.

Find out more at our free HFSS Update Webinar on 29th April and learn more about how to work with the new legislation from our Head of Legal together with ISBA’s Director of Public Affairs explaining the restrictions on media advertising and Bryan Roberts, a retail expert, sharing the impact of HFSS restrictions on shop floors.