It is now less than a month until new HFSS legislation comes into force in England. In this blog, we’re going to discuss what they are, the reasoning behind them and how you may/may not be affected by them, depending on which region of the UK your business is located in and your store's size. It is ultimately the responsibility of individual businesses to ensure their compliance with the law, but as always feel free to contact us via our live chat if you have any further questions.
What is HFSS and what are the regulations?
The Food (Promotion and Placement) Regulations were drawn up last winter and are due to officially come into force on October 1st 2022. HFSS is short for pre-packaged foods that are high in fat, salt or sugar as classified by the Department of Health’s nutrient profiling model. That could include many breakfast cereals, pastries, ice cream, chocolate and sweets, cakes, biscuits, yoghurts, pizza and crisps etc. You can find a more comprehensive list from the government here.
The HFSS regulations will severely restrict the ability of medium and large companies to promote these types of products through advertising and price/volume promotions. They will not be able to offer ‘multi-buy’ offers for HFSS products (ie, buy one get one free) in order to rebalance promotions towards healthier food and drink[1]. In addition, stores will not be able to promote them at key locations such as near the checkout or at the store entrance[2]. This also includes the online equivalent of these locations, such as before you start and after you finish adding items to the basket.
Brands and retailers will also not be able to advertise these sorts of products before the 9 pm watershed on television and radio, or with paid digital ads on search engines and social media. The measures are primarily intended to crack down on brands and stores that use marketing strategies to promote unhealthy food to children.
The regulations are being introduced in an effort to tackle the obesity epidemic, by helping customers make more informed choices about the food they eat and nudging them toward healthier options. Critics have questioned both the regulation’s intention and effectiveness, with many arguing this is yet another example of the ‘Nanny state’ imposing draconian restrictions that will disproportionately impact the poor during a cost of living crisis[3].
Though it’s heavily disputed how much these regulations will actually affect obesity[4], (for example, will replacing confectionery with chewing gum at checkouts make a sizeable impact?) the new regulations are likely on their way regardless and the F&B industry will be left with little choice but to adapt once again.
When will the HFSS regulations come into force in England?
Here you’d be forgiven for being a little confused because the government has u-turned or postponed several aspects of the legislation already. In addition, the confirmation of Liz Truss as the new Prime Minister on the day of writing could lead to further developments and possibly a total change in policy direction. But the latest information suggests that:
- In-store and online marketing restrictions will come into force from 1st October 2022. This includes banning HFSS from checkouts and ‘BOGOF’ like promotions[5].
- TV and online advertising restrictions will come into force from the start of 2023. This includes bans on pre-watershed ads for junk food[6].
These dates may well be pushed back but the time to get ready is now if you’re affected.
How about Scotland and Wales?
If you live under the jurisdiction of a devolved government in the UK, then it’s certainly worth monitoring the extent to which Edinburgh and Cardiff may diverge from Westminster. We definitely advise smaller stores to monitor what their government is already doing or planning to do.
The first thing to note is that both devolved government plans are still under or subject to consultation, meaning the previous caveat of everything being liable to change is particularly important here[7][8].
However, we can say that Scotland and Wales are both exploring banning HFSS product inclusion in meal deals, leading to many questioning what a viable ‘snack’ option could be, should crisps and chocolate bars be banned. In addition, both nations are looking at restricting temporary price reductions, such as ‘10% off' promotions.
As well as going further on promotions of HFSS products than England, Scotland and Wales are also looking into more stringent restrictions on store displays. These include prohibiting island displays, bin displays and free-standing display units.
Still under debate is what to class as HFSS: during the consultation, Scotland’s option 1 would affect products in an almost identical way to England. On the other hand, if Scotland’s strictest option 3 is favoured, then some breakfast cereals, yoghurts, pizzas and pre-prepared potato products could be for the chop.
Who is affected by HFSS and who is exempt?
The government has been forced to amend its legislation several times after industry consultation. The restrictions on in-store and online promotional offers and positioning will affect ‘medium and large’ businesses, which the government defines as having 50 employees or more.
The Nationwide Caterers Association (NCASS) has been lobbying the government hard about these restrictions and has won some significant concessions. Most importantly, they have forced the government to backtrack somewhat on the advertising restrictions which would have seemingly prevented businesses from even posting pictures of their products on social media.
After consultation, the government has said that these restrictions will only include PAID ads (ie, not organic posts on ‘owned media’ such as social media feeds or your website) and any business with fewer than 250 employees will be exempt from them.
It therefore seems to be the case that:
- Small businesses (50 or fewer employees) are unaffected by either promotional restrictions or advertising restrictions.
- Medium businesses (50-250 employees) are affected by promotional restrictions but not advertising restrictions.
- Large businesses (250 employees +) are affected by both promotional restrictions and advertising restrictions.
What should you do?
If you feel like the legislation may affect you, then planograms may very well be a worthwhile investment for your business. Tools such as the Planogram Publisher have helped big players better understand consumer habits and how they relate to visual merchandising, as well as mitigate any potential loss of HFSS sales that may occur as a result of them being less visible to customers[9].
If you’re a small independent restaurant, cafe, bar or retailer you’re likely not going to be affected by the HFSS changes. This is welcome news, of course, but it’ll be worth noting which way the wind is blowing - the government will probably tighten these restrictions further in years to come to make their anti-obesity campaign all-encompassing.
References:
[1] Public Health England - Sugar Reduction: The Evidence for action Annexe 4
[2] GOV.UK - Sugar Reduction: The Evidence for action
[3] The Express - Nanny state rules on junk food are impossible for small businesses to follow - COMMENT
[4] The Food and Drink Federation - Food and drink advertising
[5] GOV.UK - Promotions of unhealthy foods restricted from October 2022
[6] Nationwide Caterers Association - Huge success at small business exemption in new HFSS advertising rules
[7] GOV.SCOT - Consultation on Restricting Promotions of Food and Drink High in Fat, Sugar or Salt
[8] Welsh Government - Consultation Document: Healthy Food Environment
[9] The Grocer - In the post-HFSS store, smarter understanding of the shelf will be critical to success
Further reading:
GOV.UK, Research and Analysis, Sugar reduction: from evidence into action
ACS advice, HFSS Products: Promotion and Location Regulations
