HFSS: volume price promotion restrictions for less healthy food and drink are coming

The volume price promotion restrictions on specified pre-packed food and drink that is high in fat, salt, or sugar (“HFSS”) under the Food (Promotion and Placement) (England) Regulations 2021 (the “Regulations”) are due to come into force on 1 October 2025.

Volume promotions and refill restrictions 

The Regulations, which apply only in England, include restrictions on:

• volume price promotions (e.g., multibuy promotions including e.g., ‘3 for the price of 2’, 50% extra free and ’Buy one get one free’) on 13 categories of pre-packed products that are ‘less healthy’ (as determined under the Nutrient Profiling Model).  The 13 categories of food are: 
  (I) soft drinks, (ii) savoury snacks, (iii) breakfast cereals, (iv) confectionery, (v) ice cream/lollies, (vi) cakes and cupcakes, (vii) sweet biscuits and bars, (viii) "morning goods" (e.g., croissants), (ix) desserts and puddings, (x) sweetened yogurt, (xi) pizza, (xii) chips and wedges, (xiii) ready-to-heat meals, pastry products and battered/breaded seafood and meat products.  
• offering free in-store refills of non-prepacked sugar-sweetened drinks.  This includes non-prepacked soft drinks that are in scope of the Soft Drinks Industry Levy with a Nutrient Profiling Model (NPM) score of ≥1, and all other drinks under category 1 of schedule 1 of the Regulations with an NPM score of ≥1, including tea or coffee that is pre-sweetened before sale.  

Placement rules and previous delay

The Regulations came into force on 1 October 2022 and imposed restrictions on the placement of certain categories of ‘specified’ 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).  See our previous article HFSS – ‘less healthy’ food placement rules now in force – are you compliant?

However, the restrictions relating to volume price promotions and in store refills of sugar-sweetened drinks were delayed due to the “unprecedented global economic situation and in order to give industry more time to prepare for the restrictions on advertising”.  

The Food (Promotion and Placement) (England) (Amendment) Regulations 2023 amended regulations 5 and 6 of the Regulations delaying the ban on volume price, both in-store and online, and on in-store free refills on non-pre-packaged sugar-sweetened drinks.  

Are there any exemptions? 

Businesses exempt from the volume price promotions include:

• micro or small businesses (businesses with under 50 employees) 
• care homes, hospitals, and education institutions
• food that is provided by a charity in the course of its charitable activities
• the out of home sector (e.g., restaurants, cafes), even if they sell prepacked HFSS food and drink (except free refills of sugary drinks).  

What is out of scope of the volume price promotion restrictions? 

• Discount promotions such as ‘50% off’, ‘save £1’, etc
• Non-prepacked food 
• Meal deals and ‘dine in for 2’ offers
• Free samples or vouchers for free products  
• Medicinal products and meal replacement products with an approved health claim
• A multipack is considered a single item for the purposes of volume price promotion restrictions. If the packaging does not promote the item in comparison with individual packs (such as ‘6 for the price of 4’ or ‘50% extra free’), then it does not fall within the scope of the Regulations (although a volume promotion on multiple multipacks would be in scope).  

Are there any further transitional periods? 

There is a 12-month transitional period which means that retailers have until 30 September 2026 to sell through existing HFSS products that have promotions printed on the packaging.  

What happens if you don’t comply?  

Failure to comply with Regulations can result in a business being issued with an improvement notice and subsequently a fixed monetary penalty if compliance is not achieved.  

What do I need to do now?

Food and drink retailers with 50 or more employees that sell food and drink in England should review their product lines and the scope of any agreed volume promotions to ensure compliance by 1 October 2025.  

Businesses that also sell food and drink in Scotland, Wales and Northern Ireland will face some challenges as each devolved nation develops their own framework – some of which will likely diverge from the rules in England.  Businesses may choose to adopt the highest standard across the UK for consistency and ease (although this could put them at a competitive disadvantage where less stricter rules apply) or look to comply locally with different sets of rules in different parts of the UK (which would be more burdensome and introduce a greater risk of getting it wrong).  Businesses should keep an eye on these frameworks as they develop.