Food suppliers face increased regulation

Out-Law Analysis | 02 Sep 2021 | 11:24 am | 4 min. read

Food suppliers and others in the food supply chain in the UK can expect to face further mandatory obligations aimed at encouraging consumers to make healthier food choices.

A recent report commissioned by the UK government has raised the prospect of the introduction of increased food regulation and new reporting requirements. The proposals in the report directly relate to the market in England but the independent review was also asked to consider the relationship with the administrations in Scotland, Wales and Northern Ireland – where policy responsibility for food and health is largely devolved – and worked closely with them in preparing their report.

Cameron Fiona

Fiona Cameron

Senior Practice Development Lawyer

The report suggests that whilst some producers do want to make their food healthier, this cannot be done on a commercially viable basis without legislative intervention ensuring a level playing field

The report forms the second part of the national food strategy, the first part of which was published in July 2020. It sets out a number of proposals aimed at “escaping the junk food cycle”, which it states is crucial for improving the health of the population and for the UK to meet some of the challenges of climate change.

The report points to the UK population’s “predilection for calorie dense foods”. It says a cycle of activity is linked to this: food companies “invest more time and money creating these foods, which makes us eat more of them and expands the market, which leads to more investment, which makes us eat more”.

Focusing on foods high in fat, salt and sugar (HFSS), the report suggests that whilst some producers do want to make their food healthier, this cannot be done on a commercially viable basis without legislative intervention ensuring a level playing field. 

Many commentators believe that improving the health outcomes of those with a poor diet requires legislative intervention. The report puts forward some proposals in this regard, including recommending that a £3/kg tax on sugar and a £6/kg tax on salt sold for use in processed foods or in restaurants and catering businesses be introduced. Those proposed measures are aimed at incentivising manufacturers to reduce the levels of sugar and salt in their products, by reformulating their recipes or reducing their portion sizes. 

The report also acknowledges the power retailers can wield in encouraging customer food choices, through product positioning and promotions, for example. To promote better choices by consumers, the report recommends that there should be a statutory duty for all food companies with more than 250 employees – including retailers, restaurant and quick service companies, contract caterers, wholesalers, manufacturers and online ordering platforms – to publish an annual report on the following set of metrics:

  • sales of food and drink high in fat, sugar or salt (HFSS) excluding alcohol;
  • sales of protein by type (of meat, dairy, fish, plant, or alternative protein) and origin;
  • sales of vegetables;
  • sales of fruit;
  • sales of major nutrients: fibre, saturated fat, sugar and salt;
  • food waste;
  • total food and drink sales.

The report states that as companies of this size already have a legal obligation to calculate calories on their foods, this means the majority already produce the raw data required to calculate these figures.

Betts Zoe

Zoe Betts

Legal Director

As governments try to address the challenges both in terms of health outcomes and environmental commitments legislative change imposing additional burdens is almost inevitable

Changes on the way

The Covid-19 pandemic has brought the dangers of obesity into sharp focus. With pressure on the NHS mounting, there is certainly political will to make changes. Whether that translates to the regulation suggested remains to be seen. What is clear, however, is that the UK government will not shy away from imposing further obligations on the food supply chain to force change to improve health outcomes. Its policy paper, ‘Tackling obesity: empowering adults and children to live healthier lives’, sets out a number of related initiatives and commitments, including to introduce regulations restricting the promotion of HFSS products by price (volume promotions) and in terms of their location, such as at checkouts, the end of aisles and store entrances.

The Food (Promotion and Placement) (England) Regulations 2021 (the draft regulations) were laid before the UK parliament earlier this summer and if passed are intended to come into force on 1 October 2022. Medium and large retailers – those with over 50 employees, excluding care homes and educational institutions – are in scope of the draft regulations, although stores that are below 185.8 sq m and all specialist retailers, such as sweet shops, will be exempt from the location restrictions. The draft regulations set out the proposed restrictions and allow for the service of improvement notices where a breach occurs and for criminal penalties as well as fixed monetary penalties for continued violation.

Prepacked food and drink in the following categories are in scope of the restrictions in the draft regulations: soft drinks; cakes; chocolate confectionery; sugar confectionery; ice cream; morning goods such as pastries; puddings; sweet biscuits; breakfast cereals; yoghurts; milk-based drinks with added sugar; juice-based drinks with added sugar; pizza; ready meals; meal centres, including breaded and battered products; crisps and savoury snacks; and chips and similar potato products.

The restrictions will also apply to free refills of sugar-sweetened drinks in the out-of-home sector, such as in restaurants or coffee shops.

Other related commitments include the requirement for large businesses operating in the out-of-home food sector in England to display information relating to the calorific content of a single standard portion of their food, together with a statement that “adults need around 2,000 kcal a day” in a visible and legible format on menus and food labels from 6 April 2022.

The Calorie Labelling (Out of Home Sector) (England) Regulations 2021 will apply to English businesses with more than 250 employees operating outlets where food or drink is prepared in a way that means it is ready for immediate consumption by the person who buys it. Those businesses are said to account for nearly half of the value of all food and drink sold in the out of home sector. A consultation on introducing mandatory calorie labelling on alcoholic drinks in the UK is also in the pipeline.

Although not linked to the government’s tackling obesity strategy directly, from 1 October, the 2019 Food Information (Amendment) (England) Regulations will come into force and supplement the drive to secure better health outcomes from food choices. The regulations, which will be matched by similar allergen regulations across the devolved administrations in Scotland, Wales and Northern Ireland, will require the packaging or labels of prepacked for direct sale (PPDS) foods sold in England to display the following information clearly:

  • name of the food;
  • full ingredients list; with
  • allergenic ingredients emphasised – for example, in bold, italics or a different colour.

The Food Standards Agency has recently published some new resources to help businesses prepare for this.

Those in the food supply chain cannot be left behind. As governments try to address the challenges both in terms of health outcomes and environmental commitments legislative change imposing additional burdens is almost inevitable.