By arch.resource member Nick McMahon.

Foods high in fat, sugar and salt (HFSS) have been in the Government’s crosshairs for some time. As part of its plan to address obesity, the Government has for some time planned restrictions on the promotion of distinct categories of HFSS food.  The regulations implementing these plans – the Food (Promotion and Placement) (England) Regulations 2021 – are complicated, but essentially propose to restrict businesses in a number of ways:

• Outlawing multibuy deals on HFSS food – for example, buy one get one free (BOGOF), ‘3 for 2’, ‘3 for £10’, or ‘buy 6 and save 25%’, as well as restrictions on free refills for soft drinks
• Banning HFSS adverts on TV before 9pm and paid-for adverts online
• Restricting the placement of HFSS products in key store locations, such as checkouts, store entrances, aisle ends and their online equivalents. There are limits to this restriction which does not apply to smaller or specialist shops or businesses with fewer than 50 employees
  
  

All of these restrictions were due to come into force on 1 October 2022, but in some respects implementation has now been delayed.  The Government’s explanation for this is the severe disruption to world economies caused by higher-than-expected global energy and goods prices which have shocked supply chain costs upwards in turn affecting businesses and consumers.

The multibuy and refill restrictions have been delayed until October 2023. It is said this will allow the Government to assess the impact of the restrictions on the cost of living in light of the current global economic situation. This implies a possibility that there may be a further delay.

The ban on adverts has been delayed to January 2024 to allow the industry more time to prepare.

However, the restrictions on product placements instore and online will take effect from 1 October 2022 as planned.  If they have not already done so, relevant businesses will need to consider which of their products will fall into the categories affected, and how in practical terms this might impact on their marketing and sale in retail stores and online.  Getting it wrong could lead to penalties of £2,500 as well as a frustrating time cost.

Engaging with enforcing Local Authorities will require a good understanding of the Regulations.  Given the complexity of the Regulations, this will not be a straightforward exercise for businesses.  Advice may be helpful to understand the enforcement approach that Local Authorities are likely to take, to appreciate where challenges may be appropriate, and to identify any grey areas in relation to application of the regulations to assist in discussions with clients and regulators.

If these Regulations are relevant to you, arch.law can advise and guide your business through this complex area of law.  For more information on how we can help contact nick.mcmahon@arch.law