Restricting promotions of food and drink high in fat, sugar, or salt: consultation analysis

Executive Summary

Introduction

1. From 1^st July to 23^rd September 2022, the Scottish Government undertook a public consultation to invite views on its proposed approach for restricting promotions of food and drink that are high in fat, sugar or salt (HFSS), as a means of changing the food environment that encourages the public to purchase more than they need and to over-consume less healthy food.

2. The aim of the consultation was to gain some sense of the balance of opinion among respondents towards the proposals, whilst also presenting an understanding of the breadth and detail of arguments put forward both for and against them. Respondents to the consultation are a self-selecting group and therefore their views cannot be claimed to be representative of the wider population.

The respondents

3. The consultation received 110 responses. Of these 38 were from individuals (35%) and 72 were from organisations (65%). Organisation responses comprised of 41 (57%) from industry (industry representative bodies, manufacturers, retailers and out of home providers) and 31 (43%) from non-industry (public sector, third sector and 'other').

Overview of findings

4. Typically, different respondent types held distinct views for each of the proposals. Non-industry respondents were generally supportive of restrictions but less supportive of some exemptions. They generally favoured restrictions being comprehensive and avoiding the possibility of 'loopholes' that could undermine the overall effectiveness of the approach. Industry respondents were supportive of some aspects of the approach but typically to a lesser degree than non-industry respondents. Generally, where support existed among industry respondents it related either to preferring alignment with the UK Government regulations for restrictions in England or to attaining fairness across businesses. There were some aspects of the approach that industry respondents disagreed with, typically due to a view that there is insufficient evidence to justify them, or that they would create disadvantages for certain types of businesses (such as smaller companies) or that they would not align with the approach being adopted in England.

5. Among individual respondents there was some tendency towards agreement with the proposals, but also some divergence in views. Those that were supportive generally demonstrated a similar viewpoint to those expressed by non-industry respondents. Those that were against the proposals tended either to disagree with the need for restrictions at all (viewing it to be inappropriate for the Government to influence people's purchasing behaviour), or to hold concerns about how the restrictions on promotions may affect the public financially.

Headline findings for each question group

Foods that would be subject to restrictions (Questions 1-3)

6. While numbers were somewhat dispersed across the answer options, non-industry respondents tended to favour the inclusion of the full scope of products being considered – option 4 (i.e. discretionary foods, plus ice-cream and dairy desserts, plus all categories included in the UK-wide reformulation programmes) as a more comprehensive approach. Industry respondents tended to favour alignment with the categories subject to restrictions in England in order to minimise confusion, disruption and the cost burden of making changes – option 3 (i.e. discretionary foods, plus ice-cream and dairy desserts, plus additional categories that are of most concern to childhood obesity according to the UK-wide reformulation programmes). Some preferred that option due to a variety of concerns with option 4. Individuals did not show a clear preference. Regardless of respondent type, some exclusions (such as foods that have nutritional benefits despite having high levels of sugar) were proposed by respondents.

7. All three respondent types tended to support the use of nutrient profiling to define whether a product is HFSS and therefore within scope of the restrictions. This was viewed as an appropriate tool and one that provided consistency with England. Non-industry respondents were a bit more muted with some preferring the perceived simplicity of a whole category approach. Industry respondents specifically favoured the 2004/2005 nutrient profile model (NPM). They held concerns about the suitability of the updated draft (2018) model (still to be published), primarily that this would diverge from England, widen the range of products to be restricted and disincentive reformulation.

8. Views were mixed in respect of the proposal (if nutrient profiling were used) to only target pre-packed products and non-pre-packed soft drinks with added sugar in respect of unlimited refills for a fixed charge. Industry respondents tended to support the proposal primarily on the basis that they viewed this to be an appropriate approach and that it would align with England. Non-industry respondents tended to disagree primarily due to concerns that this would undermine the overall effectiveness of the legislation by introducing loopholes. Individuals were mixed between agreement (viewing the approach as sensible) and disagreement (sharing the concerns held by non-industry respondents).

Price promotions (Questions 4-8)

9. Non-industry and individual respondents tended to support the inclusion of 'extra free' and 'meal deal' offers in multi-buy restrictions on the basis that these offers result in unintended purchases and over-consumption. Industry respondents also showed a level of preference for including extra free although this tended to be due to the desire for alignment with England. Those that disagreed with the inclusion of extra free primarily suggested they do not drive over-consumption or that restricting them would undermine competition and hamper smaller businesses and new products. Overall industry respondents disagreed with the inclusion of meal deals, either because this would not align with restrictions in England, or the view that meal deals are distinct from other multi-buy offers, and are cost effective, convenient and do not drive over-consumption.

10. Non-industry and individual respondents tended to support restricting unlimited refills for a fixed charge on targeted soft drinks with added sugar on the basis that these offers encourage over-consumption of unhealthy drinks. A large proportion of industry respondents did not have a specific view on this issue (some noted this type of promotion was not relevant to the type of business(es) they represented). However, there was a level of support among industry on the basis that this approach would align with regulations in England.

11. Non-industry and individual respondents suggested some other foods to be included in restrictions on unlimited amounts for a fixed charge (all targeted HFSS foods, 'all you can eat'/buffet style options, 'diet' soft drinks, and ice-cream desserts). However, overall individuals' views were split as to whether other foods should be included or not. Many industry respondents did not express a view on this issue (again as this type of promotion was often not relevant to the type of business(es) they represent).

12. Non-industry respondents tended to support restricting temporary price reductions (TPRs) primarily on the basis that they are used to promote unhealthy products or encourage unintended purchase. Industry respondents were opposed, primarily on the basis of insufficient evidence to justify their inclusion or a desire for alignment with regulation in England. Individuals were mixed between agreement (for the same reasons expressed by non-industry) and disagreement, primarily due to concern for the potential impact on low-income households.

13. Non-industry respondents offered some suggestions for additional forms of price promotion for inclusion in restrictions. Industry respondents tended to oppose including other price promotions either because this would not align with regulations for England or because they were against the introduction of any forms of price promotion. Individuals did not show a clear view. Suggestions for inclusion included loyalty schemes/pricing, multipacks, price marked packs, upselling, shelf-edge labels, money off vouchers, offering a discount on an HFSS product when another item is purchased, family sized items, reductions on fresh items (reaching the end of their shelf life), yellow label items, free or discounted side orders and discounts on larger portions in the out of home sector.

Location and other non-price promotions (Questions 9-13)

14. Non-industry respondents typically agreed with the location of HFSS products being restricted at all four in-store locations proposed (checkout areas, including self-service; end of aisle; front of store, including store entrances and covered outside areas connected to the main shopping area; island/bin displays). This was because they believed that these locations encourage customers to purchase HFSS goods that they did not intend to buy. Individuals also tended more towards agreement than disagreement. Responses from industry organisations were more mixed. There was some concern about a disproportionate impact of location restrictions on small stores (that have limited space/layout, that would struggle to meet the costs of redesigning the store layout in order to comply and that may find complying would limit the products they can stock and/or services they can provide). However, there was general support that if restrictions are introduced these should align with restrictions in England. Consequently, industry respondents thought restrictions should not include 'island/bin displays'. There were a number of other specific concerns expressed in respect of restricting island/bin displays, such as their specific use for meeting high demand for seasonal products and for displaying clearance products.

15. Non-industry respondents suggested some additional locations to include in restrictions (seasonal/promotional aisles, designated/extended queuing areas, branded chillers, the full extent of 'non-price promotions' described in the 2018 consultation on restrictions on promotion of HFSS products, HFSS items should only be displayed in their 'normal' area/aisle, temporary stands, HFSS products should not be displayed in the 'eye line' of children). Although not a specific 'location', restricting images of HFSS goods was also suggested. Industry respondents opposed the inclusion of additional locations, primarily because this would not align with regulations in England or because they do not support location (or any) restrictions. Individuals were split between disagreement and uncertainty but typically did not provide a comment to explain why.

16. Non-industry respondents supported the proposal to apply location restrictions online, in all five locations (home page, favourite products page, pop ups and similar pages not intentionally opened by the user, shopping basket, checkout page). This was on the basis that these encourage unintended purchases of HFSS items. Individuals shared a similar view but were more muted in respect of the shopping basket and were split in respect of favourites. This was due in part to concerns that restrictions may result in products not being displayed at all in those areas (even when purposely selected by the customer). There was a level of support for restricting the online locations among industry respondents on the basis that they supported alignment with restrictions in England. Where industry and individual respondents disagreed with the online locations this typically reflected general disagreement with the rationale for restricting the promotion of HFSS foods.

17. Non-industry respondents suggested some other online locations to include in restrictions. Industry respondents tended to disagree with including other online locations either because this would not align with restrictions in England or they did not support location (or any) restrictions. Individuals were mainly mixed between disagreement and uncertainty but did not typically explain their response. Suggestions for other online locations included apps/supermarket apps, social media, online adverts that pop up when using the internet, promotions via email, all pages that customers see on websites and loyalty card scheme apps.

18. Industry respondents tended to disagree with including any other types of promotion (in-store or online) not already covered by the proposals, on the basis that proposals are already comprehensive or that additional restrictions would not be consistent with the approach in England. A proportion of non-industry respondents suggested additional promotions to include. Individuals tended towards uncertainty. Suggestions that had not already been made in response to previous questions included coupons, cinema advertising for snack outlets, vending machines and promotions that include a toy.

Places that would be subject to restrictions (Questions 14-16)

19. Non-industry respondents tended to support promotion restrictions applying to all four places explored in the consultation (retail, out of home, wholesale – where sales are also made to the public, other outlets) to ensure consistency across the locations where HFSS products are sold to the public so that the restrictions are effective. Individual respondents answered in a similar fashion although support for restrictions applying to 'other outlets' was more muted (but with no clear explanation why). Industry respondents tended to agree with restrictions applying to retail but were quite split in respect of the other three places; some believed all four should be included to ensure a level playing field across businesses, while others thought there should be alignment with England where the primary focus is on retail. There were also some specific concerns about the inclusion of the out of home sector that meant that overall there was a level of preference among industry not to include the out of home sector.

20. Having indicated that restrictions would not apply to other wholesale outlets (where sales are only to trade) nor to places where sales are not in the course of business (such as charitable food and bake sales) the consultation explored whether there are any other places/types of business which should and also which should not be within the scope of restrictions.

21. Non-industry respondents made suggestions for other places/types of business that restrictions should apply to. Industry respondents tended to disagree either because this would not align with restrictions in England or they did not support location (or any) restrictions. Individuals were evenly split between disagreement and uncertainty but typically did not provide a reason to explain their response. Suggestions for other places restrictions should apply included transport and transport hubs, education settings, places visited by children, entertainment venues, attractions and museums, delivery companies/takeaways, and 'everywhere'.

22. Around half of each respondent type (industry, non-industry and individuals) did not express a view in respect of whether there are any other places/types of business that restrictions should not apply. Among those that did: non-industry and individual respondents tended not to indicate any other exclusions (preferring consistency across places that sell HFSS products); industry respondents were mixed. Some indicated there should be other exclusions (small businesses, places where other regulation already applies to food such as healthcare, out of home sector, 'airside' stores,^[1] economically vulnerable locations on the high street and workplace canteens). Others felt there should not be other exclusions in order to ensure a level playing field among businesses.

Exemptions to restrictions (Questions 17-21)

23. All three respondent types (non-industry, individual and industry) tended to support the proposal to exempt specialist businesses that mainly sell one type of food product category (such as chocolatiers and sweet shops) from location restrictions. Primarily this was on the basis that it would not be practical for these businesses to avoid displaying HFSS goods in the locations proposed for restrictions, although industry respondents also noted that the exemption would align with restrictions in England.

24. Non-industry respondents tended to disagree with using 'number of employees' and/or 'floor space' as a basis for determining exemption (should exemptions from location restrictions be extended beyond specialist businesses). Their primary concern was that allowing further exemptions would reduce the overall impact of the restrictions. Individuals tended to be split between agreement (primarily due to opposing the restrictions) and disagreement (for the same reason as non-industry respondents). Industry respondents tended to support exemptions for businesses from location restrictions on the basis of number of employees and/or floor space due to a preference for alignment with England or a view that it would not be practical for smaller businesses to comply. Notably however, it was not always clear whether respondents had made the distinction between restrictions on 'price promotion' and restrictions on 'location' and that the exemption being explored in Scotland is only proposed to apply to location restrictions.

25. Specific responses and comments were relatively low for the question on the size of business that should be exempt from location restrictions if number of employees is used as the basis for exemption. Industry respondents indicated a preference for the exemption to be applied to businesses with fewer than 50 employees primarily because this would align with England. Non-industry respondents did not indicate a preference. Individual respondents mostly did not express a view, but those that did showed a very slight preference for exempting businesses with fewer than 10 employees (but with no clear view why). Some considerations were noted by respondents in respect of how the exemption should be calculated such as including staff based at each shop or on the shop floor but not the wider business.

26. Specific responses and comments were also relatively low for the question on the size of business that should be exempt from location restrictions if floor space is used as the basis for exemption. Industry respondents indicated a preference for the exemption to be applied to businesses of less than 186 square metres, again because this would align with England. Non-industry respondents did not indicate a preference. Individual respondents mostly did not express a view, but those that did showed a level of preference for exempting businesses less than 93 square metres. This was primarily on the basis that by only exempting the smallest businesses the restrictions could still have a large impact. Some considerations were noted by respondents in respect of how the exemption should be calculated such as only considering the floor space where food is displayed (and not areas where other services are provided or other types of products are sold).

27. Very few respondents thought there were any other types of exemptions (beyond those already explored) that should apply. Suggestions that were made included exempting the advertising of company names even where that company produces HFSS products, point-of-sale advertising online, and shops that are in a remote location.

Enforcement and implementation (Questions 22-25)

28. Individuals and non-industry respondents tended to support the proposal for local authorities (LAs) to enforce the policy. Industry respondents did so to a lesser extent. Those agreeing tended to acknowledge that LAs are well placed based on their existing knowledge and relationship with relevant businesses. Some industry respondents proposed the use of the 'Primary Authority' model.^[2] However, a substantial proportion of industry and non-industry respondents did not indicate a preference. Disagreement, although low overall, tended to relate to a concern that LAs do not have sufficient capacity to undertake enforcement. A small number of industry respondents questioned whether LAs would be able to assess the accuracy of the NPM claims made by manufacturers.

29. There was a view across respondent types that to support enforcement LAs would need appropriate funding in order to: ensure sufficient staff are in place; provide training to staff on the requirements; put appropriate systems in place; and to create resources and clear guidance to assist LA staff, businesses and the public. Some industry and non-industry respondents noted the importance of ensuring a consistent approach to enforcement across LAs.

30. Industry respondents tended to favour 24 months as the lead-in time that would be appropriate to allow preparation for enforcement and implementation of the policy. This was on the basis that time would be needed to re-design store layout and train staff but also to allow time for businesses and LAs to recover from the impacts of the pandemic, and also give the public time to adapt to the cost of living crisis. Notably some industry respondents, that did not indicate a specific timeframe, suggested the time would depend on the final scope of the restrictions and/or the extent to which they align with England. Individuals were mainly split between 12 months and 24 months with no clear distinction as to why (although generally views overlapped with those expressed by industry respondents). Non-industry respondents were split across the options and a relatively high proportion did not express a view (some noted this issue was outside of their expertise).

31. In respect of whether any further considerations needed to be taken into account in relation to enforcement (such as resulting from the coronavirus pandemic, EU exit or rise in cost of living) a consistent theme among respondents was concern about the current cost of living pressures and how the restrictions may impact on the costs of shopping at a time when people were already struggling financially. A smaller number of respondents suggested that the restrictions may have a positive impact by reducing unintended purchases and therefore overall expenditure. Industry respondents held concerns about the challenges for businesses in adapting to the changes, having already gone through considerable disruption due to recent events and the introduction of other regulation. There was a view among industry respondents that a 'light touch' approach to enforcement would be appropriate to recognise these challenges. Respondents also highlighted that enforcement would pose challenges to LAs, which were thought to have limited resources and to already be carrying a number of burdens.

Legislative framework (Question 26)

32. Non-industry and individual respondents tended to support the proposed legislative framework – that Scottish Ministers should be able to make provision in secondary legislation, following consultation, to regulate in relation to specified less healthy food and drink to arrange for enforcement (including the setting of offences and the issuing of compliance notices and fixed penalty notices). Generally, they viewed this approach as appropriate to ensure restrictions are implemented effectively and that allowing flexibility would enable the approach to adapt to reflect changes to the food environment over time. Industry respondents were much more mixed but with a slight tendency towards disagreement. They were primarily concerned that the approach would mean changes could be made to the legislation without sufficient scrutiny, and there was also some objection to the use of fixed penalty notices. Undertaking further consultation before making changes to the legislation was generally favoured by respondents.

Impact assessments (Questions 27-30)

33. In respect to how the restrictions may impact specific communities or groups, there was a view that there may be positive impacts to health (by addressing one of the causes of over-consumption of HFSS products) and also financially (if people no longer purchase more than intended). However, there was also concern that there may be a negative impact on people living with socio-economic disadvantage who may experience reduced affordability of shopping. To a lesser extent it was noted there could be negative impacts (for health or financially) for a variety of groups such as those that have a specific reason or need to depend on certain HFSS foods (such as for specific health conditions or religious reasons).

34. Comments were also received in respect of potential unintended impacts on businesses. A few responses suggested restrictions could have positive impacts such as aiding smaller shops to compete with larger supermarkets, and that both manufacturers and retailers may make more money since customers will pay higher prices. However, a number of respondents held concerns that the restrictions would reduce income and increase costs to businesses, some of which suggested this may lead to business closures. There was also concern that the restrictions may impact most on small and independent businesses which are an important local service. Concerns were reiterated that diverging with restrictions in England would create a number of problems for businesses such as confusion and implementation errors, increased financial burden, and further complexity at a time where a number of challenges are already faced.