HFSS – ‘less healthy’ food placement rules now in force – are you compliant?

Restrictions on the placement of High in Fat, Salt and Sugar (HFSS) food in prominent locations (in store and online) are now in force with restrictions on volume price promotions delayed until October 2023.

What is in force?

We discussed the new measures on HFSS food including restrictions on volume offers and new rules on placement and promotion in our previous article ‘Further restrictions on HFSS (high in fat, salt or sugar) foods are coming’.

The Food (Promotion and Placement) (England) Regulations 2021 (the “Regulations”) came into force on 1 October 2022 and imposed restrictions on certain categories of ‘specified’ HFSS food that is determined, under the Nutrient Profiling Model, to be ‘less healthy’. The Regulations prohibit the placement of HFSS food in prominent in-store locations (e.g., at checkouts or the ends of aisles) and in prominent online locations (e.g., on home or payment pages).

Under the placement restrictions, ‘qualifying businesses’ (e.g., those that have 50 or more employees in total and have stores with relevant floor areas of more than 2,000 sq. ft (185.8sqm)), must not place HFSS food:

• within 2m of a checkout facility, unless placed within (but not at the end of) an aisle;
• within 2m of a designated queuing area, unless placed within (but not at the end of) an aisle;
• in a display at the end of an aisle (promotion ends generally);
• in a display on a separate structure (such as an island bin, free-standing unit) connected to, or within 50cm of, such an aisle end;
• within a certain distance (between 2.4m and 15m, determined by the total relevant floorspace) of any public entrance to the store's main shopping area; or
• in a covered external area including a foyer, lobby or vestibule.

The placement restrictions also apply to online equivalents e.g., entry pages, landing pages for other food categories, shopping baskets, pop-up pages or on shopping basket / payment pages.

As the Regulations are drafted widely, most medium to large retailers are likely to fall within the definition of ‘qualifying businesses’ – even those that were not obvious targets for the new rules. Businesses that only sell a small amount of HFSS food (e.g., at sales tills or in a connected food concession), but have a large sales space of non-food products (for example, garden centres, furniture retailers and DIY stores) are caught by the restrictions.

The categories of specified food (which are listed in Schedule 1 of the Regulations) are fairly broad and there are notable problems and a lack of consistency with the definitions contained in both the Regulations and associated guidance. This will undoubtedly lead to challenges on which foods are caught by the Regulations.

What is delayed?

The ban on volume price promotions (e.g., ‘buy one get one free’, ‘3 for 2’) of HFSS products, both in-store and online and free refills on non-pre-packaged sugar-sweetened drinks is delayed until October 2023. The Government’s reason for the delay was due to the “unprecedented global economic situation and in order to give industry more time to prepare for the restrictions on advertising”.

Further restrictions including a 9pm watershed for HFSS food advertising on TV and a restriction on paid-for advertising online are due to come into force in January 2024 under the Health and Care Act 2022.

What is the likely enforcement approach?

The Regulations will be enforced by Trading Standards or Environmental Health Officers depending on local arrangements. The guidance states that enforcement authorities will, in the first instance, work with businesses informally or by way of an improvement notice to support and encourage compliance, before pursuing the option to levy a fine.

However, according to comments from the Chartered Trading Standards Institute, HFSS enforcement is “unlikely to be regarded as a priority” for Trading Standards officers, with the Government apparently making less than £400,000 additional funding available for enforcement activity in England, over a three-year period.

The Regulations, which have been described as “confusing and complicated”, coupled with the limited enforcement budget, means it is likely, but certainly no guarantee of the appetite in different locations, that enforcement of other legislation is likely to be prioritised. That said, businesses will want to avoid the associated bad press of being made an example of.

Are the Regulations here to stay?

There have been suggestions that the obesity strategy could be scrapped by the Government which could bring an end to these HFSS restrictions altogether. Prime Minister Liz Truss was reported saying as much during the Conservative leadership contest, reportedly stating that that the measures could be scrapped and that "[people] don’t want the government telling them what to eat.”

For now, the placement restrictions under the Regulations are in force and businesses should have already assessed whether:

• they are a ‘qualifying business’;
• they fall into any of the exemptions;
• they sell any ‘specified food’ that is classified as ‘less healthy’ under the Regulations (as determined by the Nutrient Profiling Model); and,
• they require any changes to their store layout, and/or website and any planned marketing and placement.

A rough calculation suggests that the additional funding available to each local authority for this legislation in England over the three-year period amounts to a paltry £500. The apparent budget constraints certainly suggest that there will be an initial soft approach to enforcement that will be geared towards education and encouraging compliance. However, should the Regulations survive the Government’s potential changes to the obesity strategy, we may see a slightly harder stance should compliance not improve over the initial period.