How the devolved nations of the UK are diverging from English law and policy on HFSS foods

Legislation and policy in relation to food is a devolved matter. This means that Scotland, Wales and Northern Ireland all have some ability to make their own legislation in relation to high fat, salt and sugar (HFSS) food and drink. Historically this has been a somewhat moot point as EU regulation restricted the ability of Member States to make domestic legislation in this area. Now that the UK has left the EU, the devolved nations within the UK are starting to use these powers. As a consequence, differences in policy on HFSS are now starting to emerge which could ultimately mean differences in legislation within the UK.

In the last week Scotland and Wales have both launched consultations on new HFSS legislation on volume promotions and placement of products in-store and online. Both consultations indicate that each may take slightly different approach to England.

Scottish proposals

Scotland has the greatest latitude to bring in separate legislation. The Food (Promotion and Placement) (England) Regulations 2021 (F(PP)E Regulations) that will govern volume promotions and placement of products in England and Wales will not apply at all in Scotland. Therefore Scotland is consulting on bringing in its own separate legislation. The consultation suggests that there are likely to be some important differences between the Scottish legislation and the P(PP)E Regulations, including:

• Categories of food: The Scottish rules will likely apply to a different categories of food. Proposals suggest that this list of categories could either be narrower than the ones caught by the English rules and restricted to discretionary foods, such as biscuits, crisps and puddings or potentially wider and include all the food categories caught by the English rules plus additional categories such as cooking sauces, flavoured noodles and the like.
• Meal deal restrictions: The Scottish government proposes restricting price promotions on meal deals in addition to the restrictions on classic BOGOF and similar volume promotions are restricted under the F(PPE) Regulations.
• Place restrictions: The types of businesses that the Scottish government proposes should be subject to restrictions go beyond that set out in the F(PPE) Regulations. The F(PPE) Regulations applies restrictions to all retail businesses which sell food and, including franchises and online outlets; and out of home outlets in respect of free refill promotions.

Welsh proposals

Wales is within scope of the P(PP)E Regulations so the same rules will apply in Wales as will apply in England from 1 October this year.

However, the Welsh government has launched two consultations regarding additional restrictions on HFSS products over and above those imposed by the F(PPE) Regulations. These include:

• Extending the categories of food: The Welsh government wants to add table sauces, pasta with added ingredients and cooking sauces to the list of categories caught by the restrictions under the F(PPE) Regulations.
• Additional restrictions on free standing display units: Where these are positioned alongside store entrances, checkouts and ends of aisles there will be restrictions on using them to sell less healthy HFSS products.
• Ban on temporary price reductions: The Welsh government intends to ban temporary price reductions for less healthy HFSS products in addition to the ban on volume promotions.
• Minimum age of sixteen for sales of energy drinks, under 16's will be banned from purchasing high caffeine drinks which could potentially include tea and coffee in stores and online.

Position in Northern Ireland

As yet there is no news on what, if any, rules there will be on promotion and placement of less healthy HFSS products in Northern Ireland. The F(PPE) Regulations do not apply there, so it seems that there will be no restrictions (at least in the near future).

Osborne Clarke comment

All of this means that manufacturers and retailers can anticipate some difficult decisions to make in relation to compliance with HFSS rules on promotions and placement in the UK.

One option will be to comply locally with different sets of rules in different parts of the UK. The alternative will be to develop some kind of harmonised compliance for the UK which potentially means taking a risk in some regions as the rules diverge, or complying with the most onerous obligations even in those parts of the UK where this is not required.