New! HFSS guidance relating to advertising and promotion of food & drink
Alison provides the answers now issued in the new guidance relating to advertising and promotion of food and drink High in Fat, Sugar and Salt.
The new HFSS rules are complex and have prompted questions from manufacturers and retailers. It is vitally important that there is clarity on these issues to ensure that decisions can be made as to whether businesses and products are within scope and how they can be marketed and promoted in-store and on-line. The latest HFSS guidance recently published in April by the Department of Health and Social Care (DHSC) provides answers to a number of these previously unanswered questions; from what is a ‘meal deal’, a ‘specialist retailer’ to ‘what is a main customer route through store’.
When considering which businesses fall within the scope of the new rules, businesses need to be registered in England. However, when considering the exemption for businesses with less than 50 employees, the total number of employees in the business globally must be regarded, not just in England. It is also not just food retailers that will need to comply, but also other retailers that sell food, such as clothes retailers, DIY stores and pharmacies. Some retailers, such as those known as ‘specialist’ e.g., cake or sweet shops are exempt from the location restrictions. However, those businesses that claim to be a specialist retailer will need to be assessed by their local enforcement authority, particularly as some may sell products from more than one food category, bringing them in scope of the rules.
Businesses will need to consider which products are in scope and how they can be marketed and located in store. In scope products may not be displayed at the end of an aisle where it is adjacent to a main ‘customer route’ through a store. This is not, however, defined in the legislation. The new guidance clarifies this as the route a customer is expected to take when moving around the store. Island-type structures are not in scope of the restrictions as they are not regarded as aisles.
Some examples are provided on the prohibitions of multi-buy promotions and those that indicate that an item or part of an item is free (e.g., ‘BOGOF’). The prohibition will also apply to when an in scope food/drink is offered for sale with non-food items, for example, ‘buy a magazine and get a bag of sweets’. However, discount promotions such as ‘50% off’ or ‘Save £1’ are not within this policy.
Image Source: Unsplash - Marie Michele Bouchard
The guidance also considers ‘meal deals’ where foods are promoted as intended to be consumed together but are outside the scope of the volume price promotion restrictions. The key to this exemption is that these offers relate to the items promoted to be consumed together as part of a single meal. The guidance includes several examples which are considered as ‘meal deals’ and those that are not, such as platters and party food, (not intended as a main meal) which would be within scope of the volume price promotion restrictions.
Retailers also need to consider situations where several products sold together as one item (for example hampers and gift sets) fall within the scope of the rules, as this would apply if one food within it, is within scope.
The Government has recently announced that the HFSS promotional restrictions are now to be implemented in October 2023, whilst the location restrictions will continue to be implemented in October 2022.
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About the author
Alison Sharper - Legal Compliance
Alison is a Senior Regulatory Advisor who has worked with manufacturers, retailers and enforcement bodies for over 26 years. Alison has a degree in food science and has worked for two well-recognised food research associations in regulatory affairs. Alison has an extensive knowledge of EU and UK food law, working on horizon scanning and with proven experience in communicating her knowledge through training. She has presented at high profile events, including exhibitions and conferences on subjects such as nutrition and health claims and novel foods. Alison has travelled extensively over the years, presenting overseas and at client’s premises notably on EU food law for government bodies in Israel, Poland, Albania, Bosnia and Slovenia. Alison has more recently worked with several major retailers ensuring legal compliance through the pack copy and artwork process. Alison is a dedicated, professional advisor with a key eye to detail and deep understanding of the ever-changing complex area of food law.
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