HFSS newsletter | May 2024

Evolving regulatory approaches taken by France, Germany and Spain and elsewhere in the UK means businesses should keep a watching brief on the changing rules. With the high fat, salt and sugar (HFSS) restrictions on promotions pushed back to 2025 in England, we take a look at what restrictions there are elsewhere in the UK and in France, Germany and Spain and what is on the horizon.

Which restrictions/bans in relation to HFSS products are currently in force?

Entire UK

There are some pre-existing restrictions that apply across the whole of the UK.

Under the Committee of Advertising Practice (CAP) Code, the advertising of HFSS food and drink products is banned in children's media. This includes using licensed characters or celebrities popular with children to promote HFSS food and drinks.

The rules apply across all non-broadcast media, including print, cinema, online and social media advertising.

England

There are currently restrictions in place in England for the location of HFSS products which have been in force since 1 October 2022. These are implemented via the Food (Promotion and Placement) (England) Regulations 2021. Restrictions are imposed both in stores and online.

In-store restrictions include ensuring specified HFSS products are not within two metres of the checkout facility, at the end of an aisle, or within fifty centimetres of the end of the aisle.

Online restrictions for location promotion mean in-scope online marketplaces must not offer specified HFSS products in restricted locations (including website homepages, "favourite products" pages, "recommended for you" pages and pop-up pages).

In England, there are restrictions on the placement and advertising of HFSS products. The Advertising Standards Authority (ASA) has strict rules regarding HFSS advertisements. It defines HFSS as food scoring four or more and drinks scoring one or more on the Department of Health's nutrient profile model.

Current advertising restrictions

HFSS product ads must not be directed at under 16s through the media used, the context which the advert appears in, or on a medium consisting of more than 25% of under-16s.

When advertising HFSS products on social media, the ASA expects advertisers to use tools available, such as interest-based targeting.

Importantly, if the ad includes branding synonymous with a specific HFSS product, even if the specific product is not featured, the above restrictions will probably apply.

Additional requirements for television

Television advertising of HFSS products has additional requirements:

• Banning HFSS product ads on children's channels or channels appealing to children.
• Prohibiting HFSS product ads during or adjacent to programmes aimed at under 16s.
• Restricting nutrition or health claims in HFSS product ads targeting pre-school/primary school children.

There are also additional restrictions for running/advertising a promotion (such as a competition) for an HFSS product.

France

In France, there are currently restrictions on HFSS products.

Nectars and aromatised drinks cannot be sold free of charge as an all-you-can-eat offer or for a fixed price. This restriction applies to all public catering companies, schools and anywhere intended to accommodate, train or look after minors.

Beyond this, there are specific regulations for advertising HFSS products.

Advertising messages

In particular, four health messages must be included when advertising beverages with added sugar or salt, artificial sweeteners or manufactured food products. This applies for any adverts to the public, on any media, printed media (such as flyers), radio, television, cinema, internet or (very recently) influencer promotion.

The four health messages which are to be alternatively displayed are:

1. Pour votre santé, mangez au moins cinq fruits et légumes par jour ("For your health, eat at least five fruits and vegetables a day"),
2. Pour votre santé, pratiquez une activité physique régulière ("For your health, practice regular physical activity"),
3. Pour votre santé, évitez de manger trop gras, trop sucré, trop salé  ("For your health, avoid eating too much fat, too much sugar, too much salt"), and
4. Pour votre santé, évitez de grignoter entre les repas  ("For your health, avoid snacking between meals").

Each of these messages must be accessible and regularly appear while the product is being advertised, with the regulation allowing a tolerance of +/- 10%. Specifically for printed and digital advertising, these messages must be accompanied by the link "www.mangerbouger.fr.". 

ARCOM charter

Beyond this, in application of the Audiovisual Media Services Directive, a charter has been adopted by Autorité de Régulation de la Communication Audiovisuelle et Numérique (ARCOM), relating to the promotion of healthy diets and behaviours in audiovisual programmes. As a result, for television, outdoor advertising and digital actors in particular, there is an encouragement to indicate the nutri-score in advertisements and a requirement that operators of any programmes sponsored by food or drinks products have complied with the commitments of the EU Pledge and any other standard (including the nutri-score).

Germany

There are labelling and broadcast advertising restrictions as well as soft law on HFSS products in Germany.

Labelling requirements include the need to provide information on the amount of fat, saturated fat, sugars and salt, with some specific ingredients also requiring further indication.

Advertising requirements

In respect of advertising, media service providers are obliged to take appropriate measures to reduce the advertising of HFSS products during children's TV programmes.

There are further voluntary commitments made by food companies in the German market which relate to the marketing and advertising of HFSS products (particularly to children). However, this soft law approach has been criticised for not being effective.

Spain

There are no restrictions currently imposed in Spain on HFSS products.

While there are no provisions currently in force to regulate HFSS products, there is a soft-law approach to HFSS through Spanish self-regulatory organisation (Autocontrol).

Voluntary advertising code

Autocontrol has published a code of conduct about the targeted advertising of food and beverages to children, which has an emphasis on healthy eating. Autocontrol's provisions require Regulation (EC) 1924/2006 be complied with when making advertising claims. This means that nutrition and health claims towards food in an advert should not exploit children's inexperience or credulity.

The code of conduct requires that advertising claims for food and beverages do not promote or portray unhealthy eating habits or lifestyles, or condone/present sedentary lifestyles. However, the impact of this is limited to the companies that are signed up to Autocontrol or its code of conduct.

What does the future hold?

Entire UK

There will be UK-wide restrictions on advertisements for HFSS products on television before 9pm (also known as the 9pm watershed) and on paid-for online ads. These restrictions will come into force from October 2025.

England

Promotional restrictions of HFSS products are on the horizon.

From October 2025, in the UK there will be a ban on volume promotions, for example "buy one, get one free" and "3 for 2" on HFSS items. 

The UK government previously delayed these promotional restrictions, which had been due to come into force in October 2023.

Scotland

The Scottish government has opened a consultation on proposed regulations to restrict HFSS promotions. It is open until 21 May 2024.

Promotions being considered include multi-buys, temporary price reductions, meal deals and positioning restrictions.

Wales

The Welsh government has confirmed there will be a new law on promotion restrictions (announced in 2023), with enforcement occurring in 2025. 
 

Within this, the Welsh government has also said it intends to look at temporary price promotions and meal deals, restricting the unhealthiest products from being included. It is expected to launch a consultation on enforcement measures in due course.  

France

There is no upcoming legislation in this area. While there was a draft law focused on prohibiting the targeted advertising of HFSS products to children, it has now been abandoned. 

Germany

The Federal Ministry of Food and Agriculture has prepared a draft law which is currently being co-ordinated with other departments of the federal government.

The draft law prohibits the direct advertising of HFSS foods to children (under the age of 14) by its nature, content or design, or by its temporal, content-related or spatial context.

This ban would include any media relevant to children, for example, radio, press, audiovisual media services (TV and on-demand services) or video-sharing platform services, as well as influencer marketing and outdoor advertising (for instance, within a 100m radius of kindergartens or playgrounds). Outside of this, advertising of HFSS products would still be allowed.

The timing of this law and its final provisions are not clear, as the process requires the states and associations to be consulted and their comments evaluated. After this, the revised draft will be submitted to the EU Commission for notification and the German Bundestag will need to approve the law.

Spain

The Ministry of Consumer Affairs published a draft bill  aiming to regulate (among other things) the targeted promotion of HFSS products to children. The bill is still being processed and has not been discussed in Parliament yet. It is important to note that the draft bill was issued by the previous government and that a general election took place in July 2023, so there is uncertainty on when the initiative will be enacted. There have been reports, however, that this draft bill will be processed this year.

Alongside this, under the Spanish Audiovisual Communication Act, the competent audiovisual authority is considering developing codes of conduct to restrict audiovisual commercial communications for HFSS products. However, at present these codes have not been published. 

What products are in scope of these rules?

England

The current HFSS placement restrictions are made up of a two-limb test. The rules apply to products that are HFSS and which also fall within one of the categories set out in schedule one of the regulations. These include sugary drinks, confectionary, crisp snacks and breakfast cereals. See the full breakdown of the applicable categories and examples. 

The British Retail Consortium has category guidance to help businesses further understand which products are in and out of scope of these restrictions and businesses should refer to this guidance to comply with them.

The upcoming volume promotion restrictions consist of only a one-limb test: the products just need to be classed as HFSS to fall within scope. 

France

Three types of products are affected by the current regulations:

• Nectars and aromatised drinks (restriction on all-you-can-eat offers and fixed prices).
• Non-alcoholic beverages containing added sugar or artificial sweeteners (tax applies).
• Beverages with added sugar or salt, artificial sweeteners or manufactured food products (advertising restrictions).

Germany

Generally, all foods high in sugar, fat or salt are in scope of the draft regulation.

Often the World Health Organization's (WHO) nutrient profile model is used to assess if a food is high in any of the three ingredients. The draft law currently deviates from WHO's nutrient profile model for some foods, including yogurt, milk and juices.

The draft law also explicitly lists some products as being within the scope. These include chocolate, cereal bars and confectionery.

The maximum amount of total fat, saturated fat, total sugar, added sugars, sweeteners, salt and energy a product can have in order not to qualify as an HFSS product is also outlined in the draft law.

Spain

To date there are no regulations placing any restrictions on HFSS products.

However, the voluntary Autocontrol code of conduct's scope includes any foods or beverages advertised by companies, which must adhere to the code of conduct.

The draft legislation applies to any foods or beverages. That being said, the draft legislation puts a special focus on the advertising of HFSS foods addressed at minors. In particular, Article 11 of the draft legislation reads as follows: "any form of advertising or marketing communication addressed at minors of foods and drinks high in sodium, sugars, sweeteners, fats and acids is prohibited".

The draft legislation also provides an Annex that would help advertisers understand which products would be covered by this prohibition.

Osborne Clarke comment

As illustrated above, the rules on advertising and selling HFSS or similar products are very varied across Europe and may even begin to diverge across the UK.

They are also evolving faster – with new legislation expected in many jurisdictions. Businesses should ensure they understand what legislation is already in place or on the horizon for HFSS products and what measures will need to be taken in order to ensure compliance. This will need to be kept under review as the law changes.

This article was written with the assistance of Lucy Cuthbert and Ore Laniyan, Trainee Solicitors, and Svenja Kaufeld, Legal Project Manager, at Osborne Clarke.