Lords motion to regret (annul) the Food (Promotion and Placement) (England) (Amendment) Regulations 2022 - Dec 6

Food (Promotion and Placement) (England) (Amendment) Regulations 2022

Motion to Regret

7.02pm

Moved by

Baroness Merron

That this House regrets that the Food (Promotion and Placement) (England) (Amendment) Regulations 2022 (SI 2022/1007) do not justify the delay in banning the promotion of high fat, sugar and salt (HFSS) products; and notes the evidence from the His Majesty’s Government’s own Impact Assessment that the ban would have substantial monetised benefits.

Relevant document: 15th Report of the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

Baroness Merron (Lab)

My Lords, the regret Motion standing in my name, and also that standing in the name of the noble Baroness, Lady Walmsley, are critical of the Government’s handling of the Food (Promotion and Placement) (England) (Amendment) Regulations 2022. These regulations introduce measures designed to limit the ability of retailers to promote the purchase of products classified as high in fat, salt and sugar; the intention of the regulations was to help address the high prevalence of obesity in this country.

It is worth reflecting that on 29 September 2022, just a day before the regulations were due to come into effect, the Government of the then Prime Minister Liz Truss introduced these regulations to facilitate a delay to the “multi-buy” components of the regulations—multi-buy promotions are the “buy one, get one free” on products high in fat, salt or sugar. This was passed via a negative procedure without debate, whilst the location-based restrictions came into effect as planned on 1 October this year. That brought into play restrictions on the placement of unhealthier food products near to supermarket checkouts at aisle ends and store entrances.

The motivation, if I can put it that way, for this regret Motion is that the House of Lords Secondary Legislation Scrutiny Committee strongly criticised the Government’s handling of this issue, particularly with regard to the Government’s justification for the delay, and the lack of parliamentary scrutiny for the amendment. It is the report of the committee that has formed the basis for these regret Motions, and I certainly do agree with the observations that the committee made.

Let me summarise for the purposes of your Lordships’ House the concerns encapsulated in this regret Motion. First, the Government have not brought forward sufficient evidence to justify their decision. Their stated rationale for the delay was the “global economic situation”. I suggest to the Minister that this is a somewhat cursory comment; one sentence is not enough. It is quite unclear what the Government feel the “unprecedented global economic situation” is. Are we referring to the post-pandemic situation, the war in Ukraine, high gas prices or something else? In other words, this is hardly a full description that one might expect. The Secondary Legislation Scrutiny Committee concluded that there was insufficient

“justification for delaying the start of a measure intended, over time, to accumulate public health benefits including significant savings to the NHS.”

The Government’s decision to take this still further goes directly against their own impact assessment for these policies, which states:

“Although price promotions appear to be mechanisms to help consumers save money, data shows that they increase consumer spending by encouraging people to buy more than they intended to buy in the first place.”

The impact assessment further states that

“the monetised benefits greatly outweigh the costs on a ratio of around 14:1”.

The Secondary Legislation Scrutiny Committee then outlined a number of procedural criticisms of the Government, the most significant of which include that appropriate parliamentary time was not given for scrutiny of the legislation. After all, as I have already mentioned, the statutory instrument was introduced just one day before the regulations were due to come into effect, without the standard 21-day period normally expected to allow for scrutiny by Parliament through the negative secondary legislative procedure. Of course, the statutory instrument was also laid without a full analysis of the public consultation being published, making it impossible to assess the views of the sectors affected by this decision.

There are a few questions arising from this that I invite the Minister to address when he replies. Why were the Government not able to bring forward sufficient evidence to justify their decision? Why do their claims about the impact of this policy on the cost of living contradict their own evidence presented in the impact assessment? Could the Minister say whether the consultation responses will be published, even at this stage?

I also seek reassurance from the Minister that similar procedural issues will not arise with future legislation. I make this point in particular reference to the fact that the Government will be bringing forward secondary legislation to delay the upcoming restrictions on the advertising of products high in fat, sugar and salt on TV and online, before they are due to come into effect on 1 January. I hope that we will not see a repeat of the failure to provide the requisite amount of time to allow for parliamentary scrutiny of legislation when we come to that statutory instrument. There should not be an attempt to bypass Parliament by not giving it the opportunity to discuss and examine the regulations.

This debate would not have been needed had the Government explained everything clearly in their Explanatory Memorandum, and had they allowed Parliament the opportunity to scrutinise, as is normally required. I say to the Minister that the Explanatory Memorandum is important. It is not just about how parliamentarians understand regulations; it is also about the public, industry and third-sector stakeholders. We all look to understand regulations by these means. I hope the Minister will take that point away and emphasise to the department the importance of providing the right supporting materials for often complex—and sometimes highly challenging—government policies. With that, I beg to move.

Baroness Walmsley (LD)

My Lords, my regret Motion regrets these delay regulations because they damage public health and are against the Government’s previously stated policy. When the legislation for the ban, which these regulations delay, went through your Lordships’ House in the Health and Care Act 2022, it was supported enthusiastically from these Benches. We are keen on measures to prevent ill health, save patients distress and save the NHS money, and the evidence provided by the Government in the impact statement at the time was compelling.

However, during Report, the Government introduced an amendment to allow them to delay the implementation of this measure and others in the Bill. I distinctly recall being extremely sceptical and rather suspicious about this, because of the robust opposition to these and other measures from some Members on the Government’s own Back Benches and certain lobby groups. I felt that the Government were trying to keep their troops happy and ditch the measures by stealth.

In response to my concerns, I clearly remember the noble Baroness, Lady Penn, who was leading on this amendment for the Government, assuring me that the delay power was needed only in case of a very short delay being necessary as a result of consultations on implementation. I was not convinced then and I am not convinced now. I believe that the delay power was put into the Act at the behest of lobbyists who have their own interests at heart, rather than the health of the nation, in order to allow the measures to be kicked down the road indefinitely and quietly buried.

Last week, the Government announced £20 million of funding for research to develop new medicines and digital tools to help people shed 20% of their weight. Although this will be welcome to those living with obesity, it is closing the door after the horse has bolted. In addition to spending all this money on helping people lose weight, why not promptly implement some of the measures already in legislation to help prevent obesity in the first place? By its own figures, obesity costs the NHS £6 billion annually, and this is set to rise to over £9.7 billion each year by 2050 unless effective preventive measures are taken.

As the noble Baroness, Lady Merron, said, in its 15th report, the Secondary Legislation Scrutiny Committee criticised the Government robustly on this regulation. It reminded the House that, in the impact assessment to the original instrument setting up the ban, the Government said that

“the monetised benefits greatly outweigh the costs on a ratio of around 14:1”.

That is pretty good value. Of course, the costs would have been borne by the manufacturers, retailers and advertisers of these unhealthy foods, and the benefits would have been felt by patients and the NHS, but clearly that did not suit those who lobbied the Government to introduce this delay.

What is the Government’s justification for it? The unprecedented global economic situation. What I would like to ask the Minister to explain to the House is this: whose pocket do they think they are saving by delaying the ban on this kind of price promotion? Is it that of the shoppers who are trying their hardest to put food on the table after they have paid the vast increases in their energy bills and mortgages thanks to the Government’s economic mismanagement? Or is it that of the large, profitable organisations that make, sell and advertise these foods? I am not convinced that the global economic situation is going to cause these companies to go bust, but I am convinced that continuing to allow this kind of promotion will do harm to the average shopper. Why do I say that? For the very simple reason that the Government themselves, in their own impact statement, said:

“Although price promotions appear to be mechanisms to help consumers save money, data shows that they increase consumer spending by encouraging people to buy more than they intended to buy”.

So now we know: the big manufacturers, retailers and advertisers of unhealthy foods have won, and the patients and shoppers have lost.

7.15pm

These regulations make no sense at all. In the current cost of living crisis, would it not be better to reduce the cost of healthy foods, rather than encourage people to spend their precious resources on foods which can damage their health and that of their children? How can the Government’s current proposals align with their statement that

“the costs of obesity to individuals, society and the NHS are huge, and the benefits from reducing calorie intakes across the population are therefore substantial.”

I look forward to the Minister’s attempt to justify this, and I very sure that he will not be able to, despite his best and most conscientious endeavours.

Baroness Brinton (LD)

My Lords, it is a pleasure to follow the noble Baronesses, Lady Walmsley and Lady Merron. They have said practically everything I wanted to say, and as the Minister may find it depressing for me to say it a third time, I will not.

What I do want to focus on is the key role of Parliament, and in this case your Lordships’ House, in scrutinising statutory instruments. We all have to accept that the period during which Liz Truss was Prime Minister was a somewhat extraordinary, though very short, one. I note in parenthesis that the Minister was appointed on 10 October, after these incidents had happened, so I think we need to recognise that he is responding to something that happened before he was in post. He was, however, appointed by Liz Truss.

The key thing is the sleight of hand in turning something that was absolutely openly discussed during the passage of the Health and Care Bill, and which was only to be used as a very short-term emergency measure, into what has clearly become a highly political move. While I have perhaps been slightly harsh on the time during which Liz Truss was Prime Minister, her successor has chosen not to reverse this, which tells me that this is a move by the Government.

I have to echo the points made by the noble Baroness, Lady Walmsley, about the evidence to our eyes during the passage of the Health and Care Bill of those who had heard the lobbyists and were fighting hard against the amendments the Government wanted.

I have just a couple of questions. We do need to see the evidence. The Secondary Legislation Scrutiny Committee was right: it is not appropriate to ask Parliament to scrutinise something without the evidence. Where is it, when will we see it and why do claims about the cost of living contradict the Government’s own evidence in the impact assessment available at the time? It is important that Parliament sees the detail of the responses to the Government’s consultation from every sector—food and drink, supermarkets, health bodies, not-for-profit organisations and charities—and the public, in whatever way they responded. Do the Government plan to publish that consultation?

Given the concern expressed by everyone who has spoken this evening, and indeed the Secondary Legislation Scrutiny Committee, and the evidence of our own eyes in your Lordships’ Chamber during the passage of the Health and Care Bill, it might be helpful if Ministers could publish all the meetings that all Ministers have had with food and drink industry members this calendar year, which about ties in with the beginning of the passage of the Health and Care Bill—at least, the first consultations prior to legislation arriving here in your Lordships’ House.

Finally, I suspect this may be slightly beyond the power of the Minister, but I do hope he will go back to the usual channels and seek guarantees that this sleight of hand will not be used again, especially given the delay on advertising HFSS products on TV and online before the provisions are due to come into effect on 1 January 2023. We absolutely must have that 21 days to decide whether we want to pray something in aid and bring forward regret Motions. However, there is a bigger issue here: the reputation not just of your Lordships’ House but of the Executive, and the power of the Executive just to ignore the systems that are in place. We need to make sure that scrutiny can be done effectively.

The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)

My Lords, I thank the noble Baronesses, Lady Merron and Lady Walmsley, for securing this important debate to discuss the Food (Promotion and Placement) (England) (Amendment) Regulations 2022. I also pay tribute to the Secondary Legislation Scrutiny Committee for its 15th report of the 2022-23 Session, which considered the amendment.

I thank noble Lords for their constructive and thoughtful contributions to the discussion on tackling the significant challenge of obesity. From this debate and our previous discussions, the good news is that we are all agreed on the need to take action. We are all aware of the stats: 40% of kids are overweight when they leave primary school, 25% are obese and, as the noble Baroness, Lady Walmsley, said, there is a huge impact on the economy of £58 billion per annum and a huge impact on the NHS of £6.5 billion. That is notwithstanding the huge impact on individuals’ personal health and well-being as well.

We are also all agreed on the strategy that we need to take: reducing overconsumption of food and drink high in calories, sugar, salt and fat. I think we all know the main levers available to achieve that but, to paraphrase the OECD, there are four key steps: information/education, increasing healthy choices, modifying costs and restrictions on promotions and product placements. We have made good progress on each of those. We have extensive education programmes and traffic-light labelling on food, we are working with industry to reformulate food recipes, we are putting calories on menus to signal healthy choices and we are ensuring a healthy start to life through nutritionally balanced school recipes. Furthermore, the sugary drinks tax levy has had a huge impact, with a 47% decrease in sugar.

Finally, the introduction of restrictions on product placement has had a high impact on the look and feel of our supermarkets. It is early days but a year-on-year change in the consumption of these types of products—two months into this, I guess—shows an 8% fall in sugar content, a 5.7% fall in salt consumption and a 6.4% fall in fat, which shows that these restrictions on product placement are working. Furthermore, analysts calculate that the steps we have taken here will account for 96% of the reductions in calorific intake. I repeat: the actions that we have taken, thanks in large part to all of us in the House, account for 96% of the projected reduction in calories. The early signs from the evidence that I gave show me that those actions are working.

I turn to the 4% and the thing we have not done, the subject of the regret Motion tonight: the delay to the ban on promoting foods high in fat, sugar and salt—the so-called BOGOF, or “buy one, get one free”, promotions. I emphasise that this is just a delay to the ban to give people time to adjust. I am delighted to say that Tesco and Sainsbury’s, accounting for 42% of the market, have already voluntarily banned BOGOFs of these types of food products. I am confident that the rest of the market will voluntarily follow, whether they are supermarkets following the lead of Tesco and Sainsbury’s or food companies reformulating their recipes to reduce fat, sugar and salt to avoid the so-called BOGOF ban.

By working with the food industry, we have taken action to address 96% of the problem, and we are working collaboratively with industry to implement the remaining 4%. Those figures probably give the best answer for the delay, though I concede that maybe I say that as a data analyst—and it was before my time.

I agree with the noble Baronesses, Lady Merron and Lady Brinton, that the so-called sleight of hand clearly was not great. I am pleased to take that from this debate, and I commit to doing better for as long as I am here.

The noble Baroness, Lady Walmsley, asked about the benefits challenge. The action that we have taken is focused on 96% of the forecast decrease in calorific intake, which again shows that we have acted where the benefits are most likely to accrue. My rough maths says that, if 42% of the market—Sainsbury’s and Tesco—voluntarily introduce this, we are now looking at addressing about 98% of the calorific intake that we had forecast to reduce. By any measure, that shows very strong analytical evidence of good reasons for doing so, and for giving people time to adjust and make the other changes.

On the 21-day rule, a consultation on this instrument was conducted between 3 and 17 August 2022. This was a short consultation shared with key stakeholders, including trade industry bodies and organisations, non-governmental organisations and enforcement officers. We sought views on the proposed text of the instrument. A summary of the outcome of the consultation was provided in the published Explanatory Memorandum. We explained that the consultation received 11 responses, including from organisations that represent over 50 health organisations, and industry trade bodies that represent manufacturers and retailers. All proposed changes suggested as part of the consultation were considered in the light of ensuring that this instrument served the intended purpose of delaying the implementation of the volume price promotion restrictions by 12 months.

Baroness Brinton (LD)

My question was whether the detail of the consultation responses would be published in the future. I appreciate that the Minister may not be able to answer that now, but even though there may not have been responses from many people—and it sounds as though there were not—it would still be useful for us to see that to do our job. Can he take that back? It is the normal convention that the results of public consultations are published; if not word by word, there is certainly more of a summary provided than there was in the Explanatory Memorandum.

Lord Markham (Con)

I thank the noble Baroness and am happy to take that back.

I hope that I have answered the questions. In all honesty, I cannot go into some of the details of whether there were other reasons behind it. As ever, being the data anorak that I am, I will fall back on the fact that what we did addresses 96% of the forecast reduction in calories. As ever, I will happily follow up in writing on anything that I have not covered.

I thank the noble Baronesses, Lady Walmsley and Lady Merron, for bringing forward the debate tonight. We are all agreed on the need to tackle obesity, and I want to focus on those things that we agree on. We are agreed on the actions and that those implemented already, such as the sugary drinks tax levy, have resulted in an almost 50% reduction in sugar, and that those recently implemented account for 96% of the projected reduction in calories. Our only slight disagreement is over time, concerning the remaining 4%, but by working collaboratively, we have already brought the biggest two supermarkets on side, and we will have 100% implementation within the year. We are working with the industry and we are backed by the science in what we are doing. Most of all, the action taken to date is working.

7.30pm
Baroness Merron (Lab)

My Lords, I thank the Minister for his response. I particularly appreciate his acknowledgement of the criticism that the Secondary Legislation Scrutiny Committee made about process. I am sure that all of us in your Lordships’ House will very much welcome his assurance—I do not wish to put words into his mouth—that we will not see a repeat of that on his watch. That is very reassuring.

However, it is interesting that the Minister referred to this as just delay to take some time to adjust. I am not sure who we are referring to on taking the time to adjust, particularly in view of the fact that the Minister has informed your Lordships’ House that some supermarkets have already come forward to implement these measures. They clearly did not need time to adjust. I remain somewhat mystified by the logic put forward today, particularly as the points made by noble Lords very much echoed those raised in the passage of the Health and Care Act and have been repeated many times in this Chamber—we have great concerns about the failure to take action that we know will make a change because the Government’s own documentation says that it will.

I welcome the Minister’s concern that the processes were not followed. I very much hope that we will not have to repeat such a regret Motion. However, I have to part company on what I felt was a response that said that it is all in hand and this is merely a delay for a time to adjust—although we do not even know for whom. It is regrettable that we are in this position. However, on the basis that we are there, I beg leave to withdraw.

Motion withdrawn.

Food (Promotion and Placement) (England) (Amendment) Regulations 2022

Motion to Regret

7.33pm

Tabled by

Baroness Walmsley

That this House regrets that the Food (Promotion and Placement) (England) (Amendment) Regulations 2022 (SI 2022/1007) will delay without sufficient justification the implementation of the ban on promoting high fat, sugar and salt products through “buy-one-get-one-free” offers in England, which was expected to deliver public health benefits and significant savings to the NHS.

Relevant document: 15th Report of the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

Baroness Walmsley (LD)

My Lords, I congratulate the Minister on a really good try. I thank him very much. The problem is that we live in an obesogenic environment.

The Minister mentioned four ways in which we can try to help people to not eat too many calories. He talked about education. It has not worked, or we would not be where we are now. He talked about information. We have had lots of different systems of food labelling—some people like one and some another. The jury is out on menu labelling, because it has not been in place for very long. He talked about reformulation—absolutely. Bravo to the Government: reformulation has worked really well. Unfortunately, its application is very narrow, and things like this need incentives and enforcement. Of course, the incentive that worked so well with reformulation was you would pay the tax if you did not —that was really good. Lastly, he talked about restrictions on promotions. We are talking about that now, but we need implementation. It is in the statute.

The only thing the Minister could say was that the industry needs time to adjust. Well, Tesco and Sainsbury’s did not need time to adjust, and they have hundreds of shops. They have done it and bravo to them; I congratulate them for doing it. They have taken the moral high ground and they have done it. I do not see why everybody else cannot either. If they can do it, why not the rest?

I echo my noble friend Lady Brinton’s concerns about the shortness of time, the lack of scrutiny and all the other things that the Secondary Legislation Scrutiny Committee criticised. I am grateful to hear the Minister say that that is not going to continue on his watch. That is good news and I thank him very much for it. In the meantime, I shall not press the Motion.

Motion not moved.