Upcoming changes to the advertising of HFSS products

Who does this apply to?

These HFSS Regulations will apply to medium-to-large businesses with over 50 employees who sell pre-packaged HFSS products to consumers (online or in-store) or offer free sugar sweetened drink refills to consumers in-store.

Regarding what will be considered ‘pre-packaged food’ this will extend to any item of food that is enclosed completely or only partially and the contents of which cannot be altered without opening or changing the packaging.

There are also a number of establishments that are exempt from any of the HFSS Regulations, such as schools and care homes. Other businesses are exempt from some of the restrictions in the HFSS Regulations as follows:

1. the volume price promotion and placement restrictions will not apply to restaurants, cafes, coffee shops, fast food or takeaway businesses; and
2. the in-store placement restrictions will not apply to stores with an internal floor area (excluding for example any preparation area) of less than 2,000 sq ft., or specialist shops or retailers that only sell one type of food (e.g. chocolatiers or sweet shops).

What are the restrictions?

1. Volume price promotions

Qualifying businesses will be prohibited from offering volume price promotions on HFSS products. This will include any financial incentive for a multibuy promotion such as “3 for 2” or “buy 5 and save 25%”, and also any promotion that indicates that an item is free such as “buy one get one free” or “50% extra free”. Non-volume related price promotions, such as “half price” or “20% off” will still be permitted on HFSS products as instead this restriction is aimed at trying to ensure that consumers are not enticed to buy more HFSS products than they were intending to.

2. Product placement

Qualifying businesses will be prohibited from placing HFSS products at certain locations within their stores as follows:

1. within 2m of a checkout;
2. within 2m of a queuing area;
3. displayed at the end of an aisle;
4. at the store entrance; or
5. in a covered external area (e.g. a foyer or lobby).

For online stores or marketplaces, the equivalent restrictions mean that the HFSS products cannot be offered for sale on home pages, landing pages for other food categories that appear whilst the customer is searching for other items, pop-up pages, shopping baskets or payment pages.

3. Drinks

The HFSS Regulations also impose a restriction on the offer of a free refill promotion on sugar sweetened drinks to consumers in-store.

Other imminent measures in respect of advertising HFSS products

In addition to the HFSS Regulations, the Government plans to use the Health and Care Bill to legislate for changes to the advertising of HFSS products and intends to introduce a 9pm-5:30am watershed for HFSS products on TV and on-demand services, in addition to a total online ban on paid-for advertising of HFSS products. These restrictions are expected to come into force at the end of 2022.

Next steps

Businesses who sell HFSS products will need to be considering whether they fall within the scope of the HFSS Regulations and how they may be impacted. Any businesses who do fall within the scope will need to be preparing now for these upcoming changes so that they are ready come October 2022. Local authorities will be responsible for enforcing the restrictions and they shall be entitled to issue improvement notices to any businesses not adhering to these rules, breach of which may result in a fine.

We expect more information and guidance will be released over the coming months which will hopefully provide further explanation and examples for businesses.