Health on the shelf – Unexpected backtrack on junk food promotions

On Saturday 14 May, the UK Government announced a significant delay to its obesity strategy.  The roll-out of a substantial part of the Food (Promotions and Placement) Regulations 2022 along with its proposals to introduce a 9pm watershed on television advertisements for unhealthy food and drink, will be delayed. This constitutes a major set-back in the implementation of a wider policy to encourage healthier eating habits, particularly among the UK’s children and young adults. The announcement comes amidst an unprecedented cost of living crisis and substantial push-back from the food industry.

The Regulations, which were set to come into force on 1 October 2022, sought to reduce consumption of high fat, sugar and salt (HFSS) foods by restricting the ability of qualifying retailers (employing 50 persons or more) to use price promotions and certain product merchandising techniques for HFSS food products.

“Promotion”

In particular, the Regulations would ban volume price promotion, for example “buy one get one free” or “3 for the price of 2” offers for qualifying food products such as crisps, chocolate bars, cakes and sweets. This would apply to promotions listed on product packaging or elsewhere. Similarly, the Regulations were to target volume selling of non-prepacked beverages containing high sugar and fat content (classic examples being soft drinks and milk shakes) by banning free re-fill offers in qualifying businesses.

Unless delayed further or scrapped, these promotional restrictions will come into force in October 2023.

“Placement”

This part of the Regulations, will restrict where HFSS food and drink which can be located on the shop floor of qualifying retailers with a relevant floor area of 185.8 sqm or more. Specifically, retailers would be restricted from placing HFSS food products in the following locations:

• within two metres of check-out facilities;
• within two metres of a designated queuing area unless placed (but not at the end of) a shopping aisle;
• in a display at the end of a shopping aisle or on a separate structure connected with or adjacent to a shopping aisle;
• at any point within two metres of the midpoint of any public entrance to the store’s main shopping area; or
• in a covered external area

Online retailers would face similar restrictions under these Regulations. HFSS food and drink products must not be offered for sale on the online retailer’s home page, on “pop-up” pages, “favourite products” or “popular products” pages, or on the online check-out page, subject to limited exceptions and caveats.

Penalties for non-compliance resemble those of other regulations concerning healthy eating (for example, the recent Calorie Labelling regulations). Penalty fines starting at £2,500 would be payable on a summary conviction. This would be followed by more serious enforcement proceedings (including criminal proceedings) which will be considered in light of subsequent non-payment and/or continued non-compliance.  

Restrictions on product placement remain on track to take effect on 1 October 2022.

Also of note is the announcement to shelve proposals for a ban on paid, “prime time” TV advertising of HFSS food and drink products, until January 2024.

The cost-of-living crisis is cited as the primary reason for the decision to pause significant parts of its efforts to encourage healthier eating. With energy prices soaring, grocery prices rising on an annual basis by 6.7% and general inflation at a 40-year high, the Department of Health said that the delay will allow UK Government officials a buffer to assess the impact of the new restrictions on households. Critics of the delays view them as a poorly tailored response to rising living costs which will serve to exacerbate already spiking rates of obesity by incentivizing consumers to “spend more on junk, and less on healthy food.”

From the perspective of industry, the UK Government notes that the delay will allow for an assessment of the impact on manufacturers and retailers alike as well as providing these stakeholders with more time to prepare for accommodating the restrictions.

Push-back from key players in the food industry, leading up to the announcement, may have also influenced the delay. Firms such as Britvic, Mars and Kellogg’s have called for delays to these restrictions which they regard as “disproportionate” to the corresponding health implications. Notably, Kellogg’s has brought proceedings against the Secretary of State for Health and Social Care, challenging the measure formula used to measure nutritional value of breakfast cereals and the legality of its implementation.

Other industry stakeholders have taken a different approach. Both Tesco and Sainsburys, presumably having already made the necessary preparations to accommodate the proposed restrictions, have indicated that these policies will be implemented voluntarily in their supermarkets despite the postponement.

The UK Government faces a challenge striking a balance between encouraging healthy eating and encumbering the food and beverage industry with more changes amidst the cost-of-living crisis. We await further updates on the above Regulations and other proposals, as the year progresses.