In October 2022, the Government is planning to introduce new regulations that will affect thousands of retailers. The intention of The Food (Promotion and Placement) (England) Regulations 2021 is to:
a) reduce the availability of products high in fat, salt and sugar (HFSS) bought through “volume promotions” like ‘buy one get one free’ offers (coming into force in October 2023), and
b) to restrict the placement of HFSS product categories in high footfall areas of an affected store, like checkouts, end-of-aisle units, store entrances, and designated queueing areas (coming into force in October 2022).
Convenience retailers’ obligations under these regulations depend on the number of employees in their business and the size of their selling space in store(s). ACS’ Assured Advice guide will help convenience retailers to understand:
Which UK nations do the HFSS regulations apply to?
The regulations only apply to England.
What constitutes Pre-Packaged food?
A pre-packaged product consists of a food and the packaging into which it was put before being offered for sale with the packaging enclosing the food in such a way that the contents cannot be altered without opening or changing the packaging. Prepacked food does not cover foods packed on the sales premises at the consumer’s request or prepacked for direct sale
Are confectionery only stores exempt from location regulations both in store and online?
If a shop mainly sells food from a single category, then they are exempt from physical location restrictions.
What is the definition of an aisle and an island unit, according to the regulations? How do they differ?
An Island unit is distinguished by not having a prominent end where food could be displayed (typically it would be square or circular in shape) and not marking a main customer route through the store. Please see Annex C image 3 of the Government’s implementation guidance here.
Can serving and queuing areas associated with food concessions selling food for immediate consumption be excluded from relevant floorspace calculations?
Yes. Serving or queuing areas associated with food concessions selling food for immediate consumption can be excluded from relevant floorspace calculations as this area is primarily used for sale of food intended for immediate consumption. The floor area for queuing or serving customers should be clearly marked either in stores or on store floorplans
Would a bar of confectionery be out of scope of the regulations as an offer alongside a coffee? E.g. Chocolate bar & a coffee for £3.
This type of offer would be in scope of the regulations and banned. This is because the regulations restrict volume promotion of HFSS products even if they are alongside a non-prepacked food product, non-food products or loyalty points. As the coffee is a non-prepacked food product being put with a HFSS product it would be in scope of the regulations.
Are frozen foods part of the restrictions?
Frozen food can be impacted by the HFSS regulations. A frozen food product is deemed HFSS based on its nutritional profiling score. Retailers should consult with their suppliers to find out this information.
Can I display HFSS products outside my store?
The current regulations states that businesses in scope must not place HFSS products in scope at 'covered external areas'. The regulations define a covered area as an area outside and connected to a store's main shopping area, through which the public passes to enter the main shopping area e.g., foyer, lobby, or vestibule.
Can store owners put images of HFSS products in restricted locations such as check outs, queuing areas and store entrances?
Yes, the regulations do not cover images of products in store.
How can I find out which brands are HFSS compliant and which are not?
It is important to recognise that the restrictions apply to products, not brands, meaning that a brand’s product range may have products in and out of scope of the restrictions. Retailers should ask their suppliers for more information about which of their products are in scope.
What food and drink product types are exempt from the restrictions?
Food and drink product types that are exempt from the restrictions include non-prepacked or prepacked for direct sale food and drink, and prepacked food products sold by a qualifying business that score less than 4 and prepacked drink products that score less than 1 under the nutrient profiling model 2004 to 2005, in accordance with the nutrient profiling technical guidance 2011.
Can HFSS products be displayed on a retailer’s online website homepage?
A seller is only allowed to display an in scope HFSS products on their home page on a signpost to the section the product is from. This must not contain a direct option to buy display such as an 'add to basket icon'. The image of the HFSS product displayed must not be more prominent that other similar signposting pictures.
In the months leading up to the regulations coming into force, and beyond the implementation date, it is likely that there will be more questions about the detail of the regulations and how they're applied in store. If you have a question about the regulations that is not covered by the guidance, please get in touch with us at advice@acs.org.uk and we will look to see if the answer can be Assured as part of our partnership with Surrey and Buckinghamshire Trading Standards.
