HFSS Restrictions on Location: online and in-store from 1 October 2022

There are a range of restrictions on the promotion of certain specified foods high in fat, salt and sugar (HFSS) that will be coming into force.  Most notably restrictions on location both in-store and online within certain qualifying businesses from next month, 1 October 2022.

Legislation and timescale is as follows:

The Food (Promotion and Placement) (England) Regulations 2021 (legislation.gov.uk)

Location restrictions - There will be restrictions on certain foods High in Fat, Salt or Sugar (HFSS) being placed at key locations such as store entrances, aisle ends, checkouts (and their online equivalents). This will apply from 1 October 2022.  

Volume restrictions ie buy 1 get 1 free, will be delayed by 1 year and will come into force October 2023. 

Guidance has now been published and is available here Restricting promotions of products high in fat, sugar or salt by location and by volume price: implementation guidance - GOV.UK (www.gov.uk)

Health and Care Act 2022 (legislation.gov.uk) - There will be restrictions on what advertisements can be placed on the internet and on TV before 9pm across the UK from 1 January 2024.  (This has been delayed for a year from 2023.)

What are the current revised timelines for introducing these measures?

  • Placement of products (in-store and online) - 1 October 2022
  • Volume promotions - October 2023
  • Free refills for soft drinks - October 2023
  • TV ads before 9pm - January 2024
  • Paid for online ads - January 2024

What foods are covered?

Pre-packed foods that are determined to be HFSS or ‘less healthy’ as defined by the Department of Health’s Nutrient Profiling Model (NPM) . This provides for a calculation of a products Nutrient Profile Score (NPS). Any foods that score four or more, and drinks with a score higher than one, are classed as HFSS. The The nutrient profiling technical guidance 2011 provides instructions on how to calculate the NPM score for different products. The restrictions will apply to products, not brands.
 AND

Included within the 13 categories of foods identified Listed in ‘Schedule 1’ of the Food (Promotion & Placement) (England) Regulations 2021:

13 Categories  of food affected

  1. Soft drinks with added sugar
  2. Savoury snacks
  3. Breakfast cereals
  4. Confectionery, including chocolate  and sweets
  5. Ice cream, ice lollies, frozen yoghurt, water ices and similar frozen products
  6. Cakes and cupcakes
  7. Sweet biscuits and  bars based on nuts, seeds or cereal
  8. Morning goods
  9. Desserts and puddings
  10. Sweetened yoghurt and fromage frais
  11. Pizzas
  12. Chips and potato products
  13. Ready meals, meal centres, breaded and battered products

What Businesses are affected?

  • Businesses exempt from the volume price promotion and location restrictions

The following businesses are exempt from the volume price promotion and location restrictions:  employs less than 50 employees. (Franchisees are however still covered.) Other exemptions concern education facilities, care homes, military, prisons, out of home/restaurants, charities in the course of their charitable activities.

  • Businesses exempt from the location restrictions

A business that has 50 or more employees and sells prepacked HFSS food or drink, but is a specialist retailer, or has a relevant floor area of less than 185.8m2 (2,000 sq ft) will be exempt from the location restrictions. These businesses will still be subject to the volume price promotion restrictions.

  • Out of Home ie restaurants

The out of home sector does not need to comply with location and volume price regulations, but must comply with the restrictions on the free refills promotion of certain drinks.

The exemption for the out of home sector from the location and volume price restrictions applies to all foods, including prepacked foods, meaning that if a restaurant sells prepacked food, this food will not be in scope of these regulations.

  • Concessions

Concessions are separate businesses operating in an area within the store of a qualifying business, which are excluded from the store’s relevant floor area, if they operate their own payment facilities.

There are no restrictions on where such concessions and their food products should be located when they are located within a qualifying business’s store.

However, a concession located within a qualifying business’s store, but not part of its business, is treated as a separate business that must comply with the promotions restrictions if it meets the criteria to be considered a qualifying business in its own right. It must also comply with the location restrictions if the concession’s area exceeds the relevant floor area threshold.

Businesses that are not in scope of the restrictions – for example, out of home businesses – are not included as part of the relevant floor area.

Placement of Products

Restrictions will see HFSS products restricted from the following locations in Qualifying Businesses order to reduce their visibility:

  • Within the prohibited distance of a store entrance (dependent on the size of the premises)
  • Covered external areas
  • Within two metres of any checkout facility
  • Within two metres of any designated queuing area
  • On and within 50cm of aisles ends in main customer routes

Online

‘Online marketplace’ means any software (including a website, part of a website or an application) that is used to offer the qualifying business’s products for sale to consumers. Qualifying business’s products can include any product sold by a qualifying business, including own brand and other branded products.

Qualifying  Businesses must not offer for sale certain HFSS foods:

  • on the home page
  • while consumers are searching for/browsing certain non-HFSS foods
  • while a consumer is searching for/browsing for distinctly different HFSS foods
  • on a page not opened intentionally by the consumer eg, a pop-up
  • on a favourite products page, unless the consumer has previously purchased the specified food (whether in store or online) or intentionally identified it as a favourite product but in any event, the foods must not be given greater prominence than other non-HFSS foods on a favourite products page
  • on a checkout page.

Restrictions will not apply where:

  • consumers are searching/browsing for non-HFSS foods and HFSS foods are offered as part of a discount offer for multiple items intended to be consumed together as, or as part of, a single meal eg, in a 'meal deal'
  • a consumer's search terms includes either the name of the HFSS foods or an ingredient listed on its packaging
  • the business only or mainly sells certain HFSS foods.

Food and drink items not covered

Food is not within scope and therefore not restricted by volume price or location restrictions if it is:

  • non-prepacked (for example, loose bakery items), except for free refills of sugar-sweetened beverages in the out of home sector
  • prepacked for direct sale such as food packed on the sale’s premises (whether or not at the consumer’s request) – for example, fresh bakery items packed on site
  • not included within any of the categories of food and drink in schedule 1. Examples of products not included within these categories are bread, bread rolls or buns, garlic bread, bread with additions, cooking sauces and pastes, table sauces and dressings, prepared dips and composite salads as meal accompaniments, and sweet spreads
  • included within the categories of food and drink in schedule 1 but not deemed to be HFSS or ‘less healthy” according to its NPM score
  • sold by businesses exempt from the regulations
  • total diet replacements and meal replacement drink products, as defined in the Foods Intended for Use in Energy Restricted Diets for Weight Reduction Regulations 1997
  • drinks used for medicinal or other specified purposes as defined in Regulation (EU) No. 609/2013
  • ‘infant formula’ and ‘follow-on formula’, and ‘baby foods’ for infants and young children as defined in Regulation (EU) No. 609/2013
  • vitamins and mineral supplements, and other food supplements, if not in the form of sweets or other products described in the regulations

Best practice

A display of specified food that is not prepacked (such as pick and mix confectionery or loose bakery items) in a restricted location would be permitted

 

If there are any queries on any HFSS related matters please do contact Jessica Burt at Mills & Reeve LLP.

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