An "Eton Mess" – The Government Delays Restrictions to HFSS Food Advertising & Promotions

Celebrity chef, Jamie Oliver recently presented an Eton Mess at Downing Street to protest the Government's latest delays on implementing measures to restrict the advertising and promotion of food and drinks that are high in fat, salt or sugar ("HFSS Foods"). Given the numerous delays, we take a look at the proposed restrictions under the Food (Promotion and Placement) (England) Regulations 2021 (the "Regulations") and the revised timeline for implementing various measures.

Since 2019, the Government has been proposing new measures to restrict the advertising and promotion of HFSS Foods as part of its strategy to tackle childhood obesity. These measures include restricting:

• volume promotions (multibuy deals, such as "BOGOF/buy one get one free", "3 for 2");
• free refills for soft drinks;
• in-store and online placement of products e.g. banning the placement of HFSS Foods in prominent locations in stores, such as at checkouts and entrances, and online equivalents;
• television adverts before 9pm; and
• online paid adverts.

​What are the revised timelines for introducing these measures?

*The Government has recently launched a consultation on TV and paid-for-adverts online. Respondents can submit their responses until 1 June 2022¹. 

Why has the Government delayed some of these measures?

The Government has put the delays down to the "unprecedented global economic situation…higher-than-expected global energy and goods prices, leading to increased costs across supply chains which are affecting both businesses and consumers"². It has also asserted that the delayed timeline gives businesses more time to prepare for the changes and the Government more time to review and monitor the impact of the restrictions on the cost of living.

Industry reaction to the delay

As expected, the decision to delay the measures has been met with a mixed reaction from different parts of the industry:

• Kate Halliwell, the Food and Drink Federation’s chief scientific officer has welcomed the delay as breathing space for both businesses and households with stretched budgets during the cost of living crisis and high inflation³.
• Phil Smith, Director General of ISBA (the body that represents brand owners advertising in the UK) equally welcomed the delay referencing the cost of living crisis and inflation and stating that the delay supports its stance that the previous "timetable left business no time to adapt to the final shape of the rules, and was heightening uncertainty and threatening investment"⁴.
• Conversely, health campaigners have criticised the decision in light of the UK obesity crisis and the increasing pressure on the NHS. Obesity Health Alliance labelled multibuy promotions as a "marketing tactic purposely designed to entice to us buy more and buy more often", which do not save consumers money and will do nothing to ease the cost of living crisis⁵."  
• Furthermore, 13 organisations (including Cancer Research UK, Diabetes UK and Obesity Health Alliance) have banded together to write an open letter to the Government urging it to reconsider a u-turn on delaying these measures⁶.​

The new measures relating to volume promotions and placement of products – a quick Q&A?

We set out a snapshot of the proposed measures under the Regulations:

Who do the Regulations apply to?

Medium and large retailers (with 50 or more employees) offering prepacked food for sale in store and online, including retailers that sell food or drink as secondary activity (DIY stores, pharmacies, clothes stores), franchises and symbol group stores. Certain exclusions apply e.g. schools and colleges, restaurants (and other out of home)⁷, care homes and specialist stores. The placement of product restrictions also only apply when retail stores are over 185.8m².

Where do the Regulations apply?

England and Wales i.e. businesses that sell food and drink in England and Wales, regardless of where they are registered.

What foods are covered?

Pre-packed foods that are determined to be HFSS or ‘less healthy’ as defined by the nutrient profiling model (NPM) 2004 to 2005. There are 13 categories of foods identified, including soft drinks, confectionery ice cream and similar frozen products, cakes, biscuits, breakfast cereals, pastries, sweetened yoghurts, desserts, pizzas and roast potatoes (note: this list is not exhaustive). Seasonal products, seasonal promotions, composite meals, hampers, gift sets etc. could also fall within the restrictions.

What are the restrictions on volume promotions?

The Regulations prohibit volume promotions (i.e. financial incentives for purchasing multiple items and promotions that indicate that an item or part of it is free) for HFSS Foods, such as "buy one get one free", "3 for 2", "4 for £10" or "25% extra free".

What are the restrictions on placement of products?

The Regulations impose controls over in-store and online placement of products by prohibiting the placement of HFSS Foods in prominent locations in stores, such as at near checkouts, queuing areas, entrances, end of aisle and online equivalents e.g. home page, favourites, during certain searches etc.

What sanctions apply for failure to comply with the Regulations?

Local authorities will be able to issue improvement notices and failure to comply with these notices can lead to a fixed monetary penalty.

This will hopefully give you a light overview of the Regulations. However, if you would like a more detailed consideration of how the Regulations may affect your business and products, we would be happy to guide you through the Regulations and the changes that you may need to implement to your business practices.

Co-authored by Victoria Dubenkova.

If you require any further information in relation to this area, please do not hesitate to contact Sonal Patel Oliva or another member of our Advertising & Consumer Protection group.

¹ https://www.gov.uk/government/consultations/online-advertising-programme-consultation/online-advertising-programme-consultation#complete-list-of-consultation-questions
² https://www.gov.uk/government/news/government-delays-restrictions-on-multibuy-deals-and-advertising-on-tv-and-online
³ https://www.fdf.org.uk/fdf/news-media/press-releases/2022-press-releases/government-delays-ban-on-promotions-and-advertising/
⁴ ISBA | ISBA statement on the delay in HFSS ad restrictions
⁵ Response to reports of a delay to new HFSS promotion restrictions - Obesity Health Alliance
⁶ https://www.jamieolivergroup.com/media/letter-to-the-prime-minister-child-health-u-turn/
⁷ The free refills restriction will apply to restaurants and the rest of the out of home sector.