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Food (Promotion and Placement) (England) Regulations 2021 update

Everyone in food retail will know plenty about the UK Government's long trailed legislation aimed at products high in fat, salt and sugar (HFSS) and tackling the issue of obesity prevalence.

As a reminder, the key elements of the Food (Promotion and Placement) (England) Regulations 2021 are:

  • A ban on advertising HFSS food products pre-9pm TV Watershed.
  • A ban on ‘Volume Promoting Multibuy Promotional’ activities i.e. Buy One Get One  Free, Link saves or 3 for 2 offers.
  • Realignment of product placement in areas such as Checkouts, Front of Store and Gondola Ends.

However – many will be equally aware that at the last minute, this legislative boat has run aground.

In June, the Government announced that the timetabling for implementation of two of the three restrictions listed above would be delayed due to the cost of living crisis and the pressure on families to afford food.

Originally, all three changes in the law were due to be in place by 2023; now only the location restrictions will come into force (as planned) in October this year. The restrictions on volume price promotions gets pushed back to October 2023 and those in respect of HFSS advertisements on TV before 9pm, to January 2024.

The “why” is interesting. This is what the Government said:

“Economies across the world have been affected by higher-than-expected global energy and goods prices, leading to increased costs across supply chains which are affecting both businesses and consumers.

The delay to restrictions on multibuy deals will allow the government to review and monitor the impact of the restrictions on the cost of living in light of an unprecedented global economic situation.

The restrictions banning HFSS adverts on TV before 9pm and paid-for adverts online will also be paused for a year, meaning they come into force January 2024. This is due to a delay to the Health and Care Bill receiving Royal Assent, as well as a growing recognition that the industry needs more time to prepare.”

They also continue to stress they are “doing everything we can to help people live healthier lives” and “[we are] determined to tackle childhood obesity and are working hard to improve young people’s health”.

Food retailers will be pretty unimpressed – having spent a great deal of time and money preparing for implementation and many will be asking why on earth press on with the location restrictions? Surely the reasoning the Government offered in delaying the other two restrictions apply just as equally to this.

Where ultimately does the Government think the costs of relocation in stores will fall? Retailers have made it pretty clear that in the context of supply chain costs rocketing, they will be unable to absorb relocation costs and they will have to pass them on to consumers. This simply does not square with the rationale for delaying other measures.

Health campaigners have reacted equally strongly to the implementation delays claiming that the Government has blown a hole in its own obesity strategy and missed an opportunity to protect children’s health.

On balance many in the food retail sector will welcome the changes to the dates of implementation but the underlying challenges remain. Equally, a revised timetable is unlikely to lead to more buy-in from businesses, many of whom feel frustrated and confused by the restrictions.

The industry is facing unprecedented challenges which will not dissipate in 12 months. Those unprepared now, seem unlikely to be prepared in October 2023. The inflation forecast appears high for some time to come which means consumers will remain under pressure; the continuing conflict in Ukraine and the sky-rocketing energy costs will only further erode confidence.

Retailers and suppliers would doubtless agree that they need to work closely to help support consumers to make healthier choices but still feel that reliance on legislation and enforcement action are blunt instruments. However, the recent judgement in the Kelloggs judicial review proceedings which sought to challenge the location restrictions (in particular) gave Kellogg’s short shrift and went further, outlining that the public health case for the approach under the regulations is compelling, proportionate and rational.

It therefore seems highly unlikely that any delay in implementation should be regarded as the first move in a Government u turn and the industry will need to steer full steam ahead in its’ compliance planning.

If you or your business need any help with any aspect of legal compliance, please do contact either Tristan Meears-White or Richard Arnot.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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Richard Arnot

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