Restricting promotions of food and drink high in fat, sugar or salt: Scottish consultation analysis

Independent analysis of the responses to the consultation on the detail of proposed regulations to restrict promotions of food and drink high in fat, sugar, or salt.

From Minister for Public Health and Women's Health

Directorate Population Health Directorate

Topic Business, industry and innovation, Economy, Health and social care

Consultation

• Restricting promotions of food and drink high in fat, sugar or salt - proposed regulations: consultation

 Supporting documents

• Summary
• Introduction
• Overview of the response
• Analysis
• Appendix 1 – Tables
• Appendix 2 – List of organisations that responded to the consultation
• Footnotes

Summary

On 27 February 2024, the Scottish Government published a consultation on proposed regulations to restrict the promotion of food and drink high in fat, sugar or salt (HFSS) where they are sold to the public, including retail and out of home settings. The consultation ran for 12 weeks, closing on 21 May 2024.

The aim of the consultation was to seek views on the detail of proposed regulations. The policy proposed targeting HFSS foods and drink including, among other things, confectionery, cakes, crisps, savoury snacks and soft drinks with added sugar. Promotions types proposed within scope included multi-buys, temporary price reductions, meal deals and positioning restrictions, such as at checkouts and front of store.

The consultation received 362 responses. Of these, 37 were from industry respondents (including industry representative bodies, manufacturers, and retailers), 46 were from non-industry respondents (including public and third sector organisations), and 279 were from individuals.

Feedback to the consultation will inform further development of the policy and associated impact assessments.

Section 1: Foods subject to restriction (Questions 1-3)

Industry respondents were broadly satisfied with how the food categories within the scope of the promotion restrictions were presented in the consultation. Most agreed that the categories in scope should be consistent with the category descriptors set out in Schedule 1 of the UK Government regulations for England, and that the food category descriptors set out in Schedule 1 sufficiently describe the food categories within scope of regulations.

For many industry respondents, consistency with the English regulations was important as it would reduce administration/cost burden of adhering to the restrictions.

Nonetheless, many industry respondents noted that they would like further guidance, including detailed definitions at the category and sub-category level, to support implementation and reduce any ambiguity. Additionally, some industry respondents felt non-pre-packed items should be included within the regulations to create a more level playing field between the retail and out-of-home sectors.

Many non-industry respondents agreed with each aspect of the proposals in this section, for the same reasons as industry respondents, while some also mentioned the benefits of cross-border continuity from an enforcement perspective.

Many non-industry respondents felt the food category descriptors could be more explicit in places. They felt, for instance, that terms such as ‘…and similar…' and ‘dairy desserts' were ambiguous, and they asked for clarification about the inclusion/exclusion of specific items in various categories. Many non-industry respondents were also keen for the restrictions to be more comprehensive, to include non-pre-packed items within scope of regulations as these form a significant part of consumers' diets.

Individuals' responses were mixed in relation to this section of the consultation. Although many disagreed with the quantitative questions, those who responded to the qualitative questions tended to feel that the proposed approach was sensible/logical.

Section 2: Price promotions (Questions 4-9)

Industry respondents tended to be less in favour of the proposals around price promotions overall. Positively, almost all agreed that the definitions of multibuy and extra free proposed were clear, and noting this reflected the approach taken by UK Government for England. However, many did not feel the proposed timescale of 12 months to phase out price promotions on packaging was sufficient. They felt the timescale should be extended to either 12-18 or 18-24 months due to the risk of waste for products with a long shelf life and the need for whole system change which can be lengthy.

Many industry respondents were against including meal deals within the regulations for two main reasons: they did not regard meal deals as a purchase leading to overconsumption and expressed concerns about how the changes would be communicated to consumers; and they were concerned it would lead to non-alignment with England which would increase businesses' costs. Many noted that the definition of meal deals would need to be more explicit for them to be able to comment on the full extent of implications for businesses.

Many industry respondents felt the proposed definition for temporary price reductions (TPRs)was unclear, with many unsure about how to distinguish between TPRs and regular price changes as well as the inclusion of end-of-life discounts. More generally, many industry respondents were against the inclusion of TPRs within scope of regulations in any form, for a number of reasons: restricting TPRs would be inconsistent with equivalent regulations for England and would increase costs and complexity for businesses; TPRs are used for a variety of reasons (manage stock, encourage brand switching, promote new products) rather than to increase volume purchase; would result in increased costs for consumers; and would negatively impact competition in the retail environment.

Non-industry respondents were considerably more positive about the proposals around price promotions. The vast majority agreed that the definitions of multibuy and extra free outlined in the proposals were clear, and most considered the timescale of 12 months to phase out price promotions on packaging sufficient as they felt industry should be aware of the forthcoming regulations.

Many non-industry respondents felt it was important that meals deals were included within scope to ensure the policy was as comprehensive as possible, leading to greater public health benefits. Non-industry respondents tended to be in favour of the meal deal options that promoted healthier eating among consumers (Option 1 and 3). A few also suggested that this approach could encourage businesses to reformulate their products.

Many non-industry respondents were supportive of restricting TPRs on the basis that, given their prevalence, it would help to maximise the positive public health impact of the policy. Many also felt the definition of TPRs was sufficiently clear for implementation and enforcement, with many stating that if a specific time-period was stated within the definition of TPR, this would create loopholes or opportunities for businesses to subvert the restrictions.

Individuals' views were more mixed. Most considered the definition of multibuy and extra free to be clear. Many were against the inclusion of meal deals within regulations, on the basis that they did not consider meal deals to be unhealthy compared to other offers, such as multibuys on discretionary foods. Individual respondents feedback was similar to industry respondents, in that they expressed concern about negative impacts on business and the wider economy. Individual respondents were split on the definition of TPRs, with a roughly equal proportion stating the definition was and was not clear. Many expressed concern that restricting TPRs could have a negative impact on businesses, and some felt it could increase costs for consumers.

Section 3: Location promotions (Questions 10-16)

Most industry respondents felt the in-store locations covered in the restrictions were sufficiently clear for implementation and enforcement with one notable exception: free-standing displays. They felt the definition for free standing displays was too broad or vague, which could lead to issues of interpretation for businesses and also inconsistent enforcement.

Many industry respondents felt the proposed approach to applying store entrance criteria to dedicated food areas within stores could have been clearer. They suggested that the regulations could be split out by store type (e.g., food retailers, non-food retailers) and the location restrictions explained within each store type. They were, however, broadly happy with the proposed description for ‘relevant floor area' to determine which businesses would be within scope of the regulations.

In relation to the descriptions of online equivalent in-store locations, industry respondents' views were generally positive, with most considering the different locations sufficiently clear for implementation and enforcement.

Non-industry respondents were positive about most aspects of the locations promotions restrictions covered in the proposals. Most agreed with the proposed approach to applying store entrance criteria to dedicated food areas within stores, and most considered both the in-store and online equivalent locations to be sufficiently clear to allow for implementation and enforcement. However, there were some notable exceptions, most commonly around the definition of checkouts, end of aisle and covered external areas. They either wanted the definition to be more precise or felt examples would be helpful to make the definition clearer. Two thirds of non- industry respondents felt that other online locations should be within scope, such as recommended product pages, as well as areas of online marketing more widely, such as direct marketing emails.

Most individuals felt the definitions for in-store locations were clear and around half felt the online equivalent locations were clear. Most individual respondents did not agree with proposed description of relevant floor area and the proposed approach to applying store entrance criteria to dedicated food areas within stores.

Section 4: Businesses within scope (Questions 17-21)

Some industry respondents agreed that the types of businesses in scope of the policy were sufficiently described for the purpose of implementation and enforcement. Some of those that disagreed raised concerns about deviation from regulations in England around things like the inclusion of the OOH sector. In relation to trade implications, many industry respondents commented on the additional costs and complexity for businesses that would arise due to divergence in regulations for Scotland and the rest of the UK.

Similarly, some agreed that the proposed extension of restrictions to online sales, including through online aggregator sites and apps, was sufficiently described. However, others expressed concern and were unsure who would be liable if there was a breach in the regulations – the qualifying business or the third-party website/platform/aggregator.

Industry respondents' views on the arrangements for franchises and symbol groups were mixed. Many stressed that symbol group stores were independent businesses that typically do not receive administrative support and should not be treated in the same way as franchises within the regulations.

Non-industry respondents were, by and large, positive about this section of the consultation. Most agreed the types of businesses within scope of the policy, and the extension of restrictions to online sales, were sufficiently described for the purpose of implementation and enforcement. In fact, some felt the restrictions should be extended so they were more comprehensive, including businesses with fewer than 50 staff and businesses that sell non-pre-packed targeted foods.

Most also agreed that the arrangements for franchises and symbol groups sufficiently described for the purpose of implementation and enforcement. They were in favour of their inclusion because this approach would represent a ‘level the playing field' as employee count would be based on the whole group, not individual stores.

Individuals' views tended to align with industry. They did not tend to elaborate on their views, although some were concerned that extension of proposals to online restrictions would result in higher costs to businesses that would be passed onto consumers. In relation to trade, many individuals expressed concern that the price of goods would increase to cover the additional costs to businesses of administering the regulations.

Section 5: Exemptions from location considerations (Questions 22-24)

Just under half of industry respondents felt the proposed exemptions from location restrictions based on business type were clear and sufficiently defined to enable implementation and enforcement. A number of additional exemptions were suggested: airside retail, OOH sector, symbol group stores, and vending and unattended retail. Most agreed the exemptions from location restrictions based on individual store relevant floor area were clear and sufficiently defined to enable implementation and enforcement.

Most non-industry respondents agreed with the exemptions proposals from location restrictions. A few felt the regulations could be clearer that specialist shops are only exempt from location restrictions and are not exempt from price promotion restrictions.

Individuals' views were mixed, with less than half agreeing with the proposed exemptions from location restrictions. Little detail was provided by these individuals as to why they felt this way.

Section 6: Enforcement and implementation (Questions 25-27)

Industry respondents were mostly positive about the proposals in relation to enforcement and implementation. Most agreed with the proposed use of administrative sanctions for enforcement of the policy, considering the approach fair and proportionate. Most also agreed with the maximum penalties proposed for the offences in relation to enforcement of the policy.

However, they were less positive about the time to prepare for implementation and enforcement. Most felt it would take time for retailers to fully understand and implement the requirements of the regulations. A few suggested that the time required would depend on the complexity of the final regulations and the extent to which they align with the regulations already in place for England.

Non-industry respondents were broadly positive as well, although some commented that the maximum penalties may not have a significant deterrent effect, especially for large organisations, due to their low value. They were considerably more positive than industry respondents in terms of the proposed time to prepare for implementation and enforcement. Again, they felt industry has known about the policy for some time, so it is reasonable to expect them to comply promptly. Further, several local authorities commented that they do not currently have sufficient resource to implement and enforce the proposed regulations and they suggest additional resource will be required to take on these responsibilities.

Most individuals who responded to these questions were not supportive of the proposals. They felt the matter was too trivial to be sanctioned and that industry would require longer than 12 months to adequately prepare to implement the proposals.