Food Law | UK Regulatory Outlook September 2024

Government confirm HFSS advertising restrictions for October 2025

The government has published the consultation outcome on introducing further advertising restrictions on TV and online for products high in fat, salt or sugar (HFSS), confirming that new restrictions will come into force on 1 October 2025. This will include introducing a 9pm watershed for less healthy food and drink advertising on TV, including all on-demand programme services, and a restriction on paid-for less healthy food and drink advertising online.

The government's response provides some clarity on the HFSS products that will be in scope, noting that only advertisements for "less healthy food and drink" are caught. There is a two-stage approach for defining a product that is considered "less healthy" for the purposes of the restrictions. The product needs to:

• fall within one of the product categories in the schedule to the draft regulations; and
• score four or above for food, or one or above for drink, when applying the 2011 technical guidance to the 2004 to 2005 nutrient profiling model.

This position largely aligns with the promotion restrictions already in place and further guidance will be published on product categories before the restrictions come into place.

The following products will not be caught by the advertising restrictions: infant formula, baby food, follow-on formula, processed-cereal based foods for infants, total diet replacements for weight-control products, meal-replacement products with an approved health claim, food supplements, and drinks used for medicinal purposes.

The response also reiterates the government's intention to introduce a ban on the sale of high-caffeine energy drinks to under 16s. Further information is expected on this.

The government has also launched a consultation on the proposed exemption of Ofcom-regulated internet-protocol television services from these online advertising restrictions on less healthy food and drink. The consultation closes on 10 October.

Food Standards Agency discusses regulation on a national level for large food businesses

Following a trial with five major supermarkets, the Food Standards Agency (FSA) board has discussed whether it is possible to work with primary authorities to regulate some large businesses with strong compliance records. The proposals discussed on 18 September would have the FSA scrutinise the overall risk management controls and data systems of these businesses rather than rely on local inspection. The proposal is that this would apply to a small number of large national food businesses, such as supermarkets, and these would be regulated at a national level rather than on a premises-by-premises basis.

For the FSA to act as the direct regulator and to implement this system fully, legislation is required that will be subject to consultation with a wide group of stakeholders and will take several years to develop. Therefore, in the meantime, the paper says they will look at implementing national regulation on a smaller scale and will then return to the board in 2025 to look at the longer-term plans.

Businesses should keep an eye on upcoming consultations which we expect to see in the near future.

Food Standards Agency issues national allergy advice on concerns over products containing mustard

The FSA is working with businesses and industry to identify products affected by peanut contamination in mustard ingredients. Industry has been asked to review food supply systems and remove from sale any products that may contain contaminated mustard ingredients.

This is a reminder for food businesses of the importance of good supply-chain due diligence and understanding the risks of the unintended presence of allergens in food products. Currently, food businesses are required to reduce the risk of cross contamination in the food chain as far as possible through food-allergen management practices including carrying out risk assessments to inform food safety management systems. Where it is not possible to eliminate or reduce the risk to the required level, voluntary precautionary allergen labelling (PAL) – for example, "may contain" – can be used to highlight the potential of the presence of allergens to consumers.

Codex has proposed that thresholds based on reference doses of allergens could be used to standardise the use of PAL. The FSA board has recently discussed the benefits and risks of  this proposal with their comments pending.

Expansion of 'Not for EU' labels across GB to be postponed

The former Conservative government earlier this year consulted on introducing "Not for EU" labelling requirements to apply to agrifood products across Great Britain and not just in Northern Ireland. Currently, these requirements are only for certain agrifood products being placed on the Northern Ireland market via the "green lane". The reason for this change was to ensure no incentive arises for businesses to avoid placing goods on the Northern Ireland market.

On 5 August, guidance on the labelling requirements for certain products moving from Great Britain to retail premises in Northern Ireland under the Northern Ireland Retail Movement Scheme was updated to say that the consultation responses were being "considered carefully", and it has now been reported that the new government is planning to postpone these plans indefinitely following warnings from industry bodies that it would cause chaos for producers and suppliers.

However, businesses moving in-scope agrifood products via the "green lane" to Northern Ireland should note that phase two of the requirements to label products with "Not for EU" comes into force on 1 October 2024. This means that from 1 October 2024, all prepacked meat and meat products, meat packed on sale premises and dairy products will need to be labelled with "Not for EU" if they are being moved between GB to Northern Ireland via the Northern Ireland Retail Movement Scheme.

Guidance updated on importing food to the UK

Government guidance on importing organic food into the UK has recently been updated to highlight that from 1 January 2027, businesses will need a certificate of inspection to import organic food from the EU, European Economic Area and Switzerland to Great Britain.  These changes were due to come into effect from 1 February 2025.

Marketing standards controls for fruit, vegetables and green bananas imported from the EU into Great Britian, which were due to come into effect on 1 February 2025, have been moved to 1 February 2027.