Food Law | UK Regulatory Outlook June 2023

UK government delays HFSS promotional restrictions to October 2025

The ban on so called "volume promotions, such as "buy one, get one free" and "get three for the price of two," on high in fat, sugar or salt (HFSS) products was due to come into force in October 2023. It has recently been reported that the UK government are to delay these restrictions until October 2025. This is the second time that the promotional restrictions have been delayed by this government. As before this is being done in light of the continued challenges with inflation and rising food prices. It will also mean that the ban on "volume promotions" will come into force at the same time as the also delayed advertising ban for HFSS products. The government have commented that they intend to consult in the coming weeks on the secondary legislation to implement the delay to the volume price restrictions.

With just over four months until the these new HFSS restrictions were due to come into effect, the news of this delay will mean that businesses who have been preparing for the ban will need to make a choice about whether to go ahead with the planned changes or postpone them. Particularly in light of the fact that there is a chance the restrictions will be delayed again if food prices continue to rise and/or as a result of new government policy on the issue.

Government updates HFSS guidance

The UK government has recently updated the guidance on restricting promotions of products high in fat, sugar or salt (HFSS) by location and by volume price now that the location restrictions have now come into force. There is now additional clarification on certain points including how specialist retailers rules work; for individuals engaged on zero-hour contracts; additional examples of products which are excluded from the restrictions; clarification for key exclusions such as "infant formula"; for minimally processed and nutritious foods; nutrient profiling model scores for packaged products of multiple items; and online advertising restrictions.

Scottish government publishes analysis of consultation on its proposal to restrict promotions of HFSS

In 2022, the Scottish government conducted a pubic consultation to collect views on its proposed approach for restricting promotions of food and drink that are high in fat, sugar or salt. On 30 May 2023, it published an analysis of responses to the consultation. The outcomes show that:

• Non-industry respondents generally supported the restrictions, but less supportive of some exemptions.
• Industry respondents favoured some aspects of the approach, but to a lesser degree than non-industry respondents. They supported either alignment with the UK government regulations for restrictions in England, or obtaining fairness across businesses.
• Individual respondents tended to agree with the proposals (with a similar view to that of non-industry respondents), but also had some divergence in views (those against the proposals tended either to disagree with the need for restrictions at all, or to hold concerns about how the restrictions on promotions may affect the public financially).

The Scottish Government has announced that it will consult on detailed regulations to ban HFSS promotions in the autumn, with restrictions set to be introduced in 2025 at the earliest.

FSA review of the novel food framework

Following the Food Standards Agency's (FSA) commission of a report on the UK's novel food framework (see this previous Regulatory Outlook), an executive summary of the report produced by Deloitte has been published. It concludes, from its evaluation of the current novel foods framework, that clearer guidance is needed, the authorisation process needs to be sped up and that the framework needs to be better aligned with emerging food technologies.

It then goes on to set out a number of models that could be used to change the novel foods regulatory framework including a triage-based regulation which would change the applications process by triaging and grouping similar applications into high/medium/low risk cases and tailoring the framework to provide a clear route for different emerging technologies.

The FSA has stated that it does not intend to publish the full report, but that it will be used to "develop the FSA's thinking on reform opportunities." Therefore we expect the regulator to publish further updates in due course on how it will reform the novel foods framework in the UK.

New regulated product application system launched by the FSA and FSS

On 20 June 2023, the Food Standards Agency (FSA) and Food Standards Scotland (FSS) launched a new system for businesses to make applications for regulated products. These are certain types of food and feed ingredients that require authorisation before they can be sold in the UK, including flavourings, food contact materials, novel foods and food additives. The FSA and FSS state that the new system will help businesses follow the correct procedure when it comes to securing the necessary authorisation to sell regulated food and feed products. The new system is designed to make it easier for applicants to understand what information is required to submit a good-quality, complete application for their product which will be welcomed by businesses.

FSA updates Food Law Code of Practice

The FSA has, on 8 June, published the revised Food Law Code of Practice for England and Northern Ireland, introducing a new model for delivering food standards controls. It notes that the changes to the code will "help local authorities to take a more risk-based and intelligence-driven approach to inspection, focusing their time and resources on food businesses that pose the greatest risk to consumers."

The new model will drive more frequent checks on non-compliant businesses, while reducing the checks on businesses that can demonstrate good levels of sustained compliance. It hopes that the updated guidance will enable local authorities to use their resources more effectively and also mean less frequent inspections for those businesses with a good track record of compliance.

Wine: reforms to retained EU law

The Department for Environment, Food & Rural Affairs recently announced plans to remove and amend retain EU law on the production and marketing of wine.

Reforms include: removing a requirement that imported wines must show an importer rather than a Food Business Operator on the label; allowing imported wine to be blended in market; and removing the mandatory requirement that certain sparkling wines must have foil caps and mushroom stoppers to be marketed in UK.

A consultation has been launched on these proposals and closes on 21 July 2023.