The government has finally provided more clarity on the high in fat, salt or sugar (HFSS) legislation that will be impacting food retailers and manufacturers later this year.
The legislation, confirmed to come into effect from 1 October, restricts the placement and promotion of HFSS products in stores as part of wider measures by the government to improve the health of the nation. The rules will apply to medium and large retailers (with 50 or more employees) offering prepacked food for sale in England, including franchises and symbol group stores where they operate under the same name.
The implementation guidance published by the Department of Health and Social Care (DHSC) yesterday aims to clarify many of the points of confusion around the new regulations and sets out more information about the way that enforcement officers will look to ensure that the rules are being followed.
Key clarifications from the guidance document include:
- Products that include volume promotions on their packaging that cannot be removed will be subject to a sell-through period of 12 months to October 2023.
- The number of employees that a business has in its entirety, not just the number of employees in England, should be used to decide whether the business is in scope of the regulations. Businesses that have fewer than 50 employees are exempt (subject to symbol/franchise definitions).
- There is more information about what constitutes a ‘relevant special offer’ such as a meal deal, or dine in for two promotion, although the guidance states that each individual case will be assessed by enforcement officers.
- Vending machines that are operated by a separate business are not subject to location restrictions, although DHSC encourages retailers not to put vending machines selling HFSS products in otherwise restricted areas of their stores.
Several leading manufacturers have already launched HFSS-compliant versions of their key brands, whilst supermarkets such as Tesco have been testing new store layouts that comply with the placement rules. However, recent reports have suggested that the government could delay the introduction of the HFSS rules to help ease the cost-of-living crisis.
James Lowman, Chief Executive of the Association of Convenience Stores (ACS) said yesterday: “While there has been speculation that the government may not be introducing these rules on 1 October, the publication of this guidance should focus retailers’ minds on being ready for the implementation of these rules by this date. We encourage retailers to start making preparations now for how they’re going to adapt their businesses to stay on the right side of the law from October, to consult with their symbol groups where applicable and to engage with their suppliers as much as possible.
“The guidance provides a lot of answers for the overall introduction of the rules, but there is still a lot of interpretation that will be left up to enforcement officers when the regulations come into force.”
On enforcement, the guidance document sets out how officers should approach businesses with a series of questions. Retailers should be able to clarify to enforcement officers:
- Whether their store is part of a business with more than 50 employees
- Whether the relevant floor area of the store is less than 2,000 sq. ft.
- Are there products that are part of the food in scope categories in a restricted volume price or location promotion in store
- If there are products in these categories on volume price or location promotions, how you have ensured that these are not HFSS or ‘less healthy’ as defined by the NPM score
Where there are issues with stores not following the rules, businesses will first be given an ‘improvement notice’ with further action (including fines) being taken if the notice is not followed.
The ACS has published its own detailed guide for retailers to help them prepare for the introduction of the HFSS regulations.
NAM Implications:
- Despite precautions, there will be a messy period of adjustment…
- …with each party learning by experience.
- Key therefore that suppliers take a defensible stance and plunge on pragmatically…
- …until circumstances determine otherwise.
- This is not one where participants can afford to remain on the sidelines…
