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

9. Legislative framework (Q 26)

9.1. The consultation paper proposed to ensure that, in giving consideration to the legislation needed, there is sufficient flexibility to future-proof public health policy to develop over time to improve diet and levels of healthy weight. It sought views on making provision in secondary legislation, following consultation, to regulate in relation to specified less healthy food and drink and to arrange for enforcement.

Question 26: Do you agree 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 and to arrange for enforcement (including the setting of offences and the issuing of compliance notices and fixed penalty notices)?

Overview

9.2. Non-industry (65%) and individual (63%) respondents tended to support the proposed legislative framework. Industry respondents were much more mixed with some objecting due to concerns that changes may be made to the legislation without sufficient scrutiny. A high proportion of industry respondents did not select a tick box, the majority of which did not provide a comment/view, however a small number of these noted they disagreed with the use of fixed penalty notices suggesting that disagreement with the proposals may be a little higher than the tick box figure (22%) indicates. The results are shown in Table 9.1.

Agreement with the proposed legislative framework

9.3. Non-industry respondents that agreed with the approach tended to note their support for a design that has flexibility and the merits that this would have for responding to the changing environment. A small number of non-industry and individual respondents noted the need for enforcement in order for the restrictions to be effective. Two non-industry respondents and one retailer specifically noted the importance of further legislative changes being subject first to consultation.

9.4. Two retailers highlighted the importance of clarity in terms of the requirements for implementation, one of which noted that the secondary legislation and guidance for the regulations in England had not been clear enough thereby increasing the cost and burden to businesses. They felt the Scottish Government could learn from this experience.

Disagreement with the proposed legislative framework

9.5. A number of industry respondents were concerned that the proposed approach would give Ministers powers to amend the scope of regulation without sufficient scrutiny. They suggested that any changes to legislation should not be able to be made without involving consultation with the industry and being subject to full scrutiny.

9.6. A number of industry respondents noted that they disagree with the use of fixed penalty notices, suggesting that compliance notices are sufficient.

9.7. Other comments, each made by one industry respondent, included:

• Concern that 'flexibility' in the legislation would equate to uncertainty;
• Concern that there was disparity between the proposals aimed at retailers and the out of home sector, 'where no such draconian action is proposed';
• Small businesses are already facing a number of challenges and that the impact of regulations on medium and large businesses should be assessed before they are applied to small businesses.

9.8. Individuals that explained their reasons for disagreement tended to re-iterate their overall disagreement with introducing any restrictions of the type proposed. One individual suggested there is a need to support and educate and that this 'less carrot more stick' approach would be resisted and resented by the public.