Calorie labelling in the out of home sector: consultation analysis

4. Application of mandatory calorie labelling

Q3. Size of business that mandatory calorie labelling should apply to

Question 3 - To which size of business in scope of the policy, should mandatory calorie labelling apply?

• All businesses
• All except businesses with fewer than 10 employees (micro)
• All except businesses with fewer than 50 employees (small and micro)
• All except businesses with fewer than 250 employees (medium, small and micro)
• None
• Other

Overview

Of the 647 responses (573 individual and 74 organisational) to this question 65% of respondents stated that they felt that the policy should not apply to businesses of any size and 13% thought that it should apply to all businesses. The large number of responses stating that the policy should not apply to any businesses was largely driven by respondents who were opposed to the policy as a whole.

A further 5% felt that mandatory calorie labelling should apply to all except micro businesses (those with fewer than 10 employees), 6% to all except small and micro businesses (fewer than 50 employees) and 6% to all except medium, small and micro businesses (fewer than 250 employees). A further 3% said other and 1% said they did not know.

Organisational responses were more varied with only 20% of organisations saying that it should apply to no businesses (compared to 71% of individuals) and 22% saying that if mandatory calorie labelling is introduced it should apply to all business (compared to 12% of individuals). Industry representative bodies in particular expressed that they felt the policy should only apply to businesses with more than 250 employees.

In total, 330 individuals and 68 organisations provided responses explaining their answer to question 3.

All businesses

The main sentiment among those who indicated that 'all businesses' should be in scope was that the potential public health benefits of having a uniformly applied policy would outweigh any time or cost concerns associated with the implementation process. While it was recognized that challenges were likely to exist for smaller businesses, improved public health was seen as the main priority which should drive forward any decisions on how the policy was applied.

There were also perceptions that exclusions based on business size would risk reducing the overall impact of the policy change, especially given that a large majority of fast-food outlets/shops might be classified as micro, small or medium sized. Including 'all businesses' was seen by this cohort as the most fair and transparent approach. Comments were made that unless the policy was uniformly applied it may be exploited by some and that if some businesses were exempt, the effect of calorie labelling would be diluted.

The need for consistency was also raised, i.e., that consumers (and staff working in the industry) may be confused if some outlets were excluded and others were not. There were also suggestions that if smaller, local or independent businesses were exempt and larger, chain organisations were not, this may lead to consumers abandoning the former as a result of lack of information being provided:

"I appreciate it will be harder for smaller businesses, but honestly if I'm out and there is a choice between a local business who doesn't have calories labelled and a chain restaurant who does, I'd go with the chain." [Individual]

Many who endorsed application to all businesses recognized that there may be legitimate concerns around the staffing and costs involved in implementation for smaller businesses and felt that there should be government support to offset this cost for small and micro businesses (discussed more below). Specific suggestions to help support smaller businesses included:

• a standard tool, devised or officially recommended by the Scottish Government to help smaller businesses in calculating calorie counts;
• nutritional analysis package access and training;
• government subsidies to help smaller businesses with implementation;
• an additional/longer implementation period for small businesses (with a possible phased approach that gives more time for implementation to small and micro businesses); and
• greater awareness raising among smaller business owners to highlight the benefits of the policy change.

All except micro businesses

Among those who felt that micro businesses should be excluded (i.e., those with fewer than 10 employees), the main argument was that they would have insufficient resources to allow them to implement the change. The main costs were seen as those associated with staff time, technology and materials required to obtain accurate calorie counts and infrastructure, including changing signage/menus (especially in outlets/venues that change their menu daily or on a frequent basis).

The proposed change was described as a "hoop to jump through" and "red tape" which would potentially add pressure to existing workloads at a time when small outlets were already struggling with COVID-19 recovery. It was also seen as being unfair and to disproportionately impact on smaller businesses compared to large, chain or franchise outlets.

An observation was also made that size of business may be less relevant than ownership, and that loopholes should be avoided such that franchises of big chains could be exempt just because the individual outlet has less than 10 employees.

All except those with fewer than 50 employees

The main arguments among those who felt that businesses with fewer than 50 employees should be exempt were largely the same as those put forward for micro businesses, i.e., burden of additional work, struggles associated with costs and reactivity/sustainability as menus change. Other arguments that were asserted included that this change may inadvertently limit or restrict the 'healthier' options provided by independent outlets if they feel that their hands are forced:

"…should the policy proposal proceed to implementation it is our view that small and micro businesses should be excluded…This proposal may result in the potential incentive for businesses to buy in preproduced/packaged foods (with calorie labelling already undertaken by the supplier) instead of preparing fresh food from scratch (thus necessitating the need to calculate calories per portion), which is likely to be case for many smaller and more sustainable operations." [Organisation, Other]

Again, a small number of respondents stressed that the impact would be disproportionately negative for smaller businesses and that smaller businesses may also be less accountable than larger operations for the existing health challenges being faced by the nation.

All except those with fewer than 250 employees

Those who supported exemptions for businesses with fewer than 250 employees again cited administrative and cost burdens as their main justification, stressing that medium, small and micro businesses would be disproportionately affected. While it was recognised that 'large' businesses would more easily be able to absorb the costs, businesses of less than 250 were still considered vulnerable.

Several (including respondents representing large businesses) also supported restrictions on businesses of this size on the basis that it would be consistent with legislation introduced in England. This would be particularly beneficial and would minimise any confusion for companies that operate across UK jurisdictions:

"Mirroring the exemption in England for businesses with less than 250 employees will obviously help small independent operators avoid further regulations and increased costs at a time when SMEs in particular are facing unprecedented challenges on the road to recovery from the COVID-19 pandemic. In addition, small independent operators do not have the advantage of being able to simply adopt practices or gain knowledge from others in the same way as Scottish operators can within a UK wide national chain." [Organisation, Industry Representative Body]

Again, businesses of this size were seen as providing more variability which might otherwise be constrained if calorie labelling was enforced. Smaller businesses may not use standard recipes and use of nutritional analysis programmes/tools may not be familiar, it was felt. The policy should not inadvertently constrain healthy options, it was stressed:

"Small businesses are often flexible, changing their menus to what local/seasonal produce is available at that time they wouldn't be able to keep up calorie counting with every menu changes/special they put on! It's not the same food day in day out!" [Individual]

Several respondents who supported the 250-employee threshold also suggested that the policy should be applied to larger businesses first and then rolled out to smaller businesses in a phased approach once there was more capacity for support. One respondent suggested that, if all businesses were included from the start, there may be a huge enforcement burden, and possibly a high level of non-compliance and ineffective implementation which could discredit (and undermine) the policy.

One respondent also suggested that greater clarity may be required around who would be counted as an employee in this context, (e.g. waiting staff, kitchen staff, delivery staff, suppliers) and another questioned how 'size' would be determined for business with variable employee numbers (i.e. some businesses will employ more staff in holiday periods/during different seasons which may mean that they move between categories of 'business size' over time).

No businesses

Among those who indicated that mandatory calorie labelling should not apply to any business, the main arguments largely mirrored those to earlier questions in the consultation, i.e., that this policy was potentially damaging to consumers, was seen as 'micro-managing' people's lives and would lead to too much focus on calories rather than healthy diets and lifestyles in the round.

Encouraging outlets to provide healthy balanced meals and healthy portion sizes instead was again encouraged, with individual choice and autonomy in decision making being seen as crucial.

Several respondents who did not support the application of mandatory calorie labelling also made more general comments that the policy would be too difficult, costly and time consuming for all types of business (regardless of size). This was raised as a particular concern given that many businesses were already struggling to recover from the pandemic. Others again indicated that size of business should again never be a key consideration in implementing policy, and that the overall aim of healthier eating should instead be prioritised in any decisions.

Others questioned how any such policy could be properly policed and monitored and how accuracy of information would be regulated and assessed.

Investment in better public health messaging/education around healthy eating was also seen by several as being more effective at tackling health concerns (including messaging regarding the importance of being active), as well as making healthy food more affordable to all.

Other comments made by just a small number of respondents each included that:

• the red, amber, green traffic light system should be used instead, as this was perceived as working well in supermarkets, etc.;
• labelling should be mandatorily applied to menus only;
• businesses should be allowed to choose for themselves whether they wish to display calorie content;
• optional labelling/access to calorie information (possibly through QR coding) may be preferable (i.e., information provided only where the consumer asks for it); and
• the policy should apply to large chains and factory producers of food only.

Other exemptions, suggested by just one or two respondents each included charitable organisations and home-based outlets, such as independent cake bakers.

Again, a small number of respondents used this question to reiterate that they felt that stating calories alone was too narrow a measure, and that more robust and detailed information would be needed to give trust to consumers. Across respondents who gave differing responses to the closed question, a cross-cutting theme was that calorie labelling alone would be insufficient to tackle public health concerns regarding weight and that better public health messaging and education was needed to accompany the policy change.

Only a small number of respondents indicated that they felt they did not have sufficient knowledge or expertise to provide an informed response to this question.

Q4. Inclusion of public sector institutions

Question 4 - We are considering including food provided for residents and/or patients within the following public sector institutions within the scope of the policy. Should food in these settings be included within the scope of the policy?

Overview

Question 4 asked respondents whether hospitals, prisons, adult care settings and military settings should be included within the scope of the policy.

Overall, individual respondents were more likely to feel that all of the institutions listed should not be in the scope of the policy, this was largely driven by many who felt the policy should not be introduced at all.

Among organisational respondents, views were more nuanced with a majority opposed to hospitals and adult care settings being in the scope of the policy but a more mixed response in terms of prisons and military settings.

It should also be noted that in the first weekend there was an issue with the question on the online consultation platform. This did not allow for respondents to pick 'yes', 'no' or 'don't know' for any more than one institution. This was resolved by the Scottish Government after the first weekend of the consultation being open.^[11] Where this issue affected a response and the respondent indicated their preference in their open response the closed response was corrected to reflect the views expressed.

In total, 420 individuals and 63 organisations provided responses explaining their answer to question 4.

No to all settings

Using the corrected data, those who said 'no' in all contexts mainly did so on the basis that they disagreed with the principle of mandatory calorie labelling overall. Among this cohort, the main concerns were that institutions should be 'safe spaces' that protected adults in their care and that exposure to calorie information may be harmful to their physical and mental health, especially those with eating disorders. People in prisons, adult care settings and especially hospitals were seen as being particularly vulnerable, with mandatory calorie labelling in these settings potentially hindering recovery for some:

"All of these are harmful places to display calories on menus, particularly hospitals due to the often fragile mental state that hospital patients could be in." [Individual]

Several respondents highlighted that autonomy of choice for adults in such settings was often constrained and so displaying calorie information would make no difference to the choices people made.

Several respondents again stressed that calorie information when presented as a standalone measure was misleading and that labelling would only be appropriate in such settings if a fuller picture of nutritional value was provided. Many also argued for prioritising healthier and more nutritionally balanced meals being made available in such settings.

Similarly, views were expressed that the money spent on mandatory calorie labelling regulation would be better spent on improving services and improving the food offered in public institutions.

One respondent suggested that calories should not be displayed overtly in any of these settings, but that information should be available elsewhere, e.g. online or upon request, if desired. In all cases, they suggested that mandatory calorie labelling should not be provided to anyone without their consent.

Two respondents suggested that all such institutions were perhaps being wrongly defined as 'out of home' and that care homes in particular should not be considered 'out of home' for permanent residents.

One respondent suggested that the government could influence the healthiness of food delivered in all these settings through other policies and that there was an inspection function already in place to monitor implementation. Another suggested ensuring the implementation of the Health Promoting Health Service, and equivalent, across institutions would have a larger impact than providing calorie information in such contexts.

All settings

Overall, sentiments were expressed that food in such institutions should already be nutritionally balanced and so mandatory calorie labelling was superfluous. Only a minority of respondents supported mandatory calorie labelling in all of the public institutions listed and this was mainly in the basis that all adults should have equitable access to calorie information regardless of their personal circumstances.

To exclude such institutions was seen by this cohort as being discriminatory and not providing information to vulnerable adults, in particular, was seen as undermining their agency. All adults should be able to make informed choices, it was felt. Being able to see the calorie context of food being consumed, especially where it had not been selected through personal choice, was seen as especially important to help with individuals' awareness:

"People within these settings have as much right to know what they're being fed as anyone else. Arguably those who have no external choices such as prison inmates or residents on care homes should have the choices they can make optimised by offering maximum knowledge." [Individual]

Other reasons given in support for roll-out of the policy to all settings was that this may help hospitals, care homes and prisons better meet the nutritional needs of those in their care, and also that implementation should be relatively easy to achieve in institutional settings, where food choices are limited/already controlled.

An argument was also put forward that a more nuanced approach may be required in these settings:

"In principle, we support each of these public sector institutions being included in the policy but we acknowledge that they are distinct settings with distinct needs. Therefore, it may be more appropriate to undertake specific impact assessments for these population groups to understand the needs within each setting and the impact of the policy." [Organisation, Third Sector]

Similarly, there may be some additional challenges to achieving mandatory calorie labelling in such institutions, it was felt, and the timescales involved in some of these settings may require to be longer than in others.

Don't Know

Among those who indicated 'Don't know' in response to all or most establishment types, the main comments were that it would depend on specific individuals' needs. If someone needed the information to assist with a particular health concern then it would be supported, but if having the information could be detrimental (such as for someone with an eating disorder), then it was not supported.

Similarly, it was suggested that information should only be present if the person that is deciding is empowered to choose:

"…I don't think it is that helpful for someone in prison to see calories and see they are higher than they would like, for example, and not have as many options to choose something else. Whereas somewhere like military settings where that is usually an important aspect of people performing their job well, it might be useful." [Individual]

The main sentiment was that decisions on labelling in institutions should be driven by individual need and autonomy, rather than uniform policies being applied. In the interests of autonomy and to allow informed decision making, several respondents did, however, suggest that calorie counts should be available on request to adults in all settings.

A small number of respondents indicated that they had insufficient experience, knowledge or familiarity with such settings and so felt unable to comment, that this question was best answered by those based in such settings and that a specific impact assessment should be carried out for these population groups understand the needs within each setting and the impact of the policy before implementation.

One respondent suggested consistency with the definition of 'Mass Catering' in the Calorie labelling in the out of home sector: implementation guidance for The Calorie Labelling (Out of Home Sector) (England) Regulations 2021, i.e. "Calorie labelling is not required in certain establishments when food is provided 'in-house'. However, where the food at that establishment is provided by another organisation with 250 or more employees (such as a contract caterer), calorie information must be displayed."

Others simply commented that they assumed that food and nutrition in such settings (especially care homes) would already be regulated, i.e. that The Care Inspectorate already have standards in relation to nutritional care.

Hospitals

In the main, mandatory calorie labelling in hospitals was not supported as most perceived this was an institution where people were often at their most vulnerable. The majority of public sector respondents disagreed with mandatory calorie labelling in hospital settings, mainly on the basis that improving health and recovery were the main priorities for patients. Only two public sector organisations that supported the policy on the whole also supported mandatory calorie labelling in hospitals. One of these maintained that choice should always remain the priority and the other suggested that all settings should provide information, especially public sector ones where 'health promotion opportunities' can also be delivered. This view was caveated, however, that there may be a risk of 'overloading' patients who are ill with information and that further work may be required on 'labelling' within hospitals.

Many individuals expressed the assumption that nutritionally sound meals would already be provided in this context:

"People in hospitals should be focused on recovering, not worrying about the calories in their food. To my knowledge, all of these settings have measures in place to serve healthy food anyway - that is more important than the numbers." [Individual]

A small number of respondents suggested that mandatory calorie labelling in hospitals may be appropriate for staff, visitors and other members of the public (in cafes, etc.) but would not be suitable for patients. The main reason for this was that they felt calorie controlled diets may not always be appropriate for those with certain medical conditions and also that calorie labelling was unlikely to be a priority for anyone in a hospital setting for a primary health need.

Prisons

Again, applying the policy in prisons was largely not supported on the basis that adults in this setting were likely to have no choices available to them. A number of public sector organisations who supported mandatory calorie labelling on the whole also supported it in prison settings, but no specific reasons for this agreement were given.

Very few respondents supported mandatory calorie labelling in prisons, with one suggesting that it may be appropriate for those serving longer sentences who would be concerned around their lifestyle choices and making informed decisions around their diet. Another highlighted that The Physical Health of People in Prison NICE guideline (NG57) states that people living in prison should be offered information about the benefits of a healthy diet and healthier food options available in the prison. Providing calorie information would facilitate this, they perceived, but this may require staff training and standardised portion sizing.

One respondent suggested that mandatory calorie labelling in this context may help support health improvement work within prison settings and may present a new opportunity to engage with prison catering services.

Several respondents commented that they did not know enough about prison settings to be able to comment or indicated that other more specialist guidance should be in place for specific settings.

Adult Care Settings

A small number of respondents expressed a presumption that meals provided in adult care settings would already be closely monitored or regulated to ensure that they met adults' needs, and so mandatory calorie labelling would be superfluous.

Others suggested that presenting calorie information to those in such establishments may also be unnecessary if it was unlikely to be understood or result in any kind of behaviour change (in terms of choice of food consumed, etc.) This would be the case for those living with dementia, some terminal illnesses, complex mental health needs, etc.:

"The hospital and care setting require that person to be well enough to understand what is being presented to them. They may be too ill or mentally uncapable of processing this information." [Individual]

Overall, views again reflected that the focus should simply be on providing nutritionally valuable meals for adults in this context and/or that a nuanced approach to different settings may be required.

Military Settings

Again, several respondents commented that they did not know enough about military settings to be able to comment.

Among the small number who supported mandatory calorie labelling in this context (including some public sector organisations and third sector organisations), this was largely because of perceptions that the physical nature of the job may require individuals to carefully monitor their food intake (a view offered by individuals). Counter views were also expressed, however, that this was a context where individuals' calorie needs would significantly vary depending on their military role, i.e. from people in largely sedentary/desk based jobs to those whose daily work entails prolonged and intense physical activity. As such, a general rule would not be suitable.

Two respondents suggested that research had recently been published which showed a significant increase in disordered eating in military populations and suggested that mandatory calorie labelling may exacerbate this (although no reference to the specific research was given).

Overall

Overall, most respondents did not support mandatory calorie labelling in any of the above settings, while others felt insufficiently knowledgeable to comment and suggested that discussion with stakeholders in relevant sectors may be more appropriate. Several of the public sector respondents advocated a nuanced approach required in each setting.