The Food (Promotion and Placement) (England) Regulations 2021 will come into force on 1 October 2022 and impact foods High in Fat, Salt and Sugar (HFSS) by introducing restrictions on volume offers and new rules on placement in retail stores and promotion. These include a 9 p.m. watershed on all advertising of HFSS foods and an outright ban on paid online advertising of HFSS foods, but additionally, the regulations prescribe the location where qualifying businesses must not place specified food inside a physical store.

The restrictions around placement in stores are likely to be particularly challenging for food and drink manufacturers who have targeted gondola/aisle ends to assist with brand awareness and promotion. However, there are other challenges as well, including challenges for the consumer in relation to the price of foods which are in scope, amidst already rising prices due to other factors, not least the inflationary costs pressures on producers and suppliers. It is worth noting that although the restrictions under the regulations do not generally apply to restaurants and the ‘out of home’ sector, they will be caught in respect of soft drink refills, as the guidance makes clear that free refills of drinks in scope are not permitted in such venues. It is also worth noting that the regulations follow a ‘pattern’ seen for other legal requirements recently, in that they only apply to businesses over a certain size, but franchised operations will ‘count’ towards employee numbers for the purposes of the calculation (a similar ‘test’ applied to the regulations introduced for nutrition labelling in the out of home sector, which came into force in April).

The guidance explains how the new rules will work, scope, liability and offers recommendations and examples of best practice. Failure to comply with the new regulations can be enforced by food authorities (essentially local authority Trading Standards or Environmental Health Officers) in a similar way as failures to comply with food information requirements, i.e. via improvement notice, with a failure to comply with an improvement notice being an offence (with a fixed penalty of £2,500 or prosecution with unlimited fine).

Improvement notices can be appealed to the magistrates’ court. However, the guidance encourages enforcement authorities to take a “pragmatic” approach to enforcement and to focus on supporting compliance rather than penalising non-compliance, including conversations with businesses, as opposed to immediate service of formal notices.

Nevertheless, businesses in the food and drink sector should familiarise themselves with the guidance ahead of the changes in October to prevent risks of enforcement action.

This update is part of the April 2022 edition of our frESH Law Horizons newsletter.