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

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

3.1. The consultation explored the categories of foods that would be subject to restrictions and how to define whether a particular product is HFSS and within scope of the restrictions. It sought views on (i) the food categories that promotion restrictions should target, (ii) whether to use nutrient profiling within targeted food categories to identify non-HFSS foods and (iii) if nutrient profiling was used, whether to only target pre-packed products and non-pre-packed soft drinks with added sugar in respect of unlimited refills for a fixed charge.

Food categories

3.2. The consultation paper presented a number of different options for the food categories to be targeted by promotion restrictions. Starting with discretionary foods only (option 1), then adding in ice-cream and dairy desserts (option 2), then expanding to include all the categories of most concern to childhood obesity (according to the UK-wide reformulation programmes) (option 3), and then finally adding in all categories included in the UK-wide reformulation programmes (option 4).

3.3. The consultation paper noted that option 3 is consistent with the categories set out in the UK Government regulations for England.

Question 1: Which food categories should foods promotion restrictions target?

Overview

3.4. Numbers were somewhat dispersed across the answer options. Non-industry respondents tended to favour option 4 (36%) primarily as this was considered to be a more comprehensive approach. Taking into account the proportion of industry respondents that selected option 3 (37%) and also those that selected 'other' or did not select a tick box answer but expressed that if restrictions are implemented they support alignment with regulation in the UK, industry respondents showed a preference for option 3. Individuals did not show a clear preference. The full breakdown of tick box responses is provided in Table 3.1.

Table 3.1 Categories targeted by food promotion restrictions

Answer	Organisations				Individuals
	Industry		Non-industry
	n	%	n	%	n	%
Option 1: Discretionary food categories	2	5%	2	7%	3	8%
Option 2: Discretionary foods + ice-cream and dairy desserts	0	0%	5	16%	6	16%
Option 3: Categories that are of most concern to childhood obesity	15	37%	1	3%	9	24%
Option 4: All the categories included in the UK-wide reformulation programmes	3	7%	11	36%	8	21%
Other	8	20%	5	16%	10	26%
Don't know	0	0%	2	7%	1	3%
Not answered	13	32%	5	16%	1	3%
Total	41	101%	31	101%	38	101%

In this and all subsequent tables within the report 'n' is the number of respondents and % is of all respondents to the consultation.

Due to rounding error percentages do not always add up to 100%.

Support for 'Option 1'

3.5. While support for this option was low overall, reasons included:

• It is a pragmatic solution, that would be simpler (than the other options) to implement and communicate to the public;
• That there were drawbacks to some of the categories included in the other options. For example, ice-cream and dairy desserts were identified as examples of foods needed by those requiring extra calories in their diets.

3.6. One industry representative body (that selected 'other') noted they did not support restrictions but that if they go ahead, option 1 should be seen as a threshold not to go beyond. This respondent recommended the Scottish Government work in partnership with wholesalers to encourage stocking of healthier products, rather than restrict commercial freedom and sector innovation.

Support for 'Option 2'

3.7. Reasons for agreement with option 2 among non-industry and individual respondents included:

• The categories being viewed as the most problematic in terms of being of limited nutritional value and often the consequence of impulse buys;
• The approach would provide a simple and effective model which would be easy for consumers to understand and accept;
• A few individuals that selected option 2, suggested options 3 or 4 could impact on people struggling with money and/or the elderly who may be reliant on foods in those categories; and would include products which were noted to provide important nutrients;
• One individual noted that while option 3 may be best overall, option 2 was a more appropriate starting point;
• One third sector respondent noted option 2 would allow for a whole category approach, reducing the need for use of the Nutrient Profile Model (NPM) and thereby simplify implementation and enforcement. Further, this respondent suggested the focus of restrictions should be on encouraging dietary improvement rather than reformulation.

Support for 'Option 3'

3.8. A prominent view among industry respondents was that they supported option 3 on the basis that this would align with the regulation in England thereby benefiting from lessons learned and reducing the potential for confusion and the cost burden on businesses of applying different rules in different locations. Notably some of those supporting option 3, highlighted that they were not in favour of the restrictions due to concerns about the impact on food affordability, businesses generally and small businesses specifically, but if restrictions are to be implemented their preference is for alignment with England.

3.9. A number of industry respondents, primarily those showing support for option 3, noted that they held specific concerns with the categories included in option 4. Concerns (each from one or two respondents) included:

• Some of the categories listed included staple products and foods that form part of the 'Eatwell' guide and other nutritional guidelines and thus are part of a healthy diet and should not be included in restrictions;
• Foods that would be included under option 4 have already been subject to successful reformulation programmes and contribute few calories to the Scottish diet, meaning their inclusion would be disproportionate;
• There may be unintended consequences of restrictions on items in option 4; People may be discouraged from using cooking sauces and pastes which would normally be consumed as part of a healthy meal and thereby from trying and cooking new meal options;
• Extra guidance would be required from the Scottish Government if option 4 was chosen with significant resources and time required to adapt;
• It would contradict other Scottish Government policies such as 'Ambition 2030' to double the Scottish food and drink industry's turnover by 2030;
• The accuracy of option 4 was queried, highlighting that items listed under that option, were not within the scope of the UK reformulation programme;
• Concern was raised about how small and micro out of home catering businesses would be impacted by increased costs caused through option 4.

3.10. One manufacturer highlighted the importance of not limiting legislation to discretionary categories which would define some foods as 'bad' and could undermine the Government's ambition to empower people to make healthier food choices.

3.11. Some (individuals and one public sector respondent) supported option 3 because they felt there is a need to change the habits and diets of young people and support parents to make informed choices for their children.

3.12. A small number of respondents that did not select option 3, nonetheless indicated a level of support for this answer option:

• One individual indicated that they supported option 3, once the current cost of living crisis has eased;
• One third sector respondent suggested starting with option 3 and progressing to option 4 in due course.

Support for 'Option 4'

3.13. Support for option 4 among non-industry and individual respondents centred on the need for a comprehensive and systematic approach to address the increasing incidence and impact of obesity and a focus on creating environments that facilitate this change. The comprehensive approach was noted to not exclude any HFSS food that could be targeted for promotions, creating a 'level playing field' and viewing diets 'holistically' rather than targeting specific types of food. This was viewed as more likely to generate change and fairer for business.

3.14. Other views expressed in relation to support for option 4 (each by one respondent) included:

• It has the benefit of ensuring the NPM is used to encourage reformulation across the board rather than excluding whole categories from the encouragement to do so;
• A focus on pastries and processed meat products is essential to meet the 'Revised Dietary Goals for Scotland' goal for saturated fat and salt;
• There is a need for far reaching regulation with regards to the promotion of HFSS foods, such as through option 4. However the respondent questioned whether the food system was ready for this transition and felt that priority should be placed on addressing the fundamental causes of restricted access to healthy foods before restricting promotions of HFSS products.

Extending option 4

3.15. A small number of respondents suggested additional products that should be included:

• Alcohol on the basis that it contains 'empty calories' therefore contributing to obesity, or that it is also very damaging to health;
• Any processed foods that contain food allergens;
• All foods that contain animal-based products.

Disagreement with the options

3.16. Respondents that did not select the tick box (or show some level of preference) for options 1-4, provided a range of views:

• General disagreement with any foods being subject to restrictions;
• The Scottish Government should not try to interfere with what the public eat;
• The regulations will be ineffective and there are better ways to encourage healthy living;
• The scope should be wider still (all HFSS foods; or all HFSS foods plus highly processed foods with artificial sweeteners);
• Inability to select an option because soft drinks were present in all 4 options.

Exclusions

3.17. A small number of respondents suggested specific exclusions they thought should apply to the categories:

• Products which provide nutritional benefits despite some containing high levels of sugar, such as dairy, yoghurt and cereal;
• Specialist products on medical grounds, for example, those designed for infants and young children (already governed by European Legislation and have been exempted from the restrictions in England).

Nutrient profiling

3.18. The consultation paper proposed to apply nutrient profiling to the foods within each targeted food category to define whether a product is HFSS and within scope of the restrictions. Specifically, the 2004/05 Nutrient Profiling Model (NPM) was proposed as a recognised, evidence-based tool already used by the food industry. In the consultation paper it was noted that this method would be consistent with the UK Government regulations for restrictions in England but consideration would be given to using the modified (2018) version of the model if it is published in time.

Question 2: Should nutrient profiling be used within all targeted food categories to identify non-HFSS foods?

Overview

3.19. Individual (61%) and industry respondents (59%) tended to support the use of the 2004/05 NPM within targeted food categories to identify non-HFSS foods. Non-industry respondents were more muted but still tended to agree (48%). The results are shown in Table 3.2.

Table 3.2 Should nutrient profiling be used to identify non- HFSS foods

Answer	Organisations				Individuals
	Industry		Non-industry
	n	%	n	%	n	%
Yes	24	59%	15	48%	23	61%
No	3	7%	7	23%	8	21%
Don't know	1	2%	2	7%	4	11%
Other	5	12%	2	7%	3	8%
Not answered	8	20%	5	16%	0	0%
Total	41	100%	31	101%	38	101%

Views in favour of using nutrient profiling

3.20. Respondents in favour referred to the NPM being:

• Appropriate, or more appropriate than applying a category approach (which for example would not enable reformulation to achieve healthier content);
• Useful for identifying which foods are healthier;
• Consistent with the regulations being introduced in England, thereby reducing complexity and costs for businesses and maintaining parity in choice for Scottish consumers;
• Some retailers felt the approach encouraged innovation and product development.

3.21. A few industry respondents that agreed with the approach nonetheless noted concern that the model does not recognise reformulated or smaller portioned products. One manufacturer noted that a review of the 2011 Technical Guidance (that accompanies the NPM) should be conducted if the NPM is adopted, due to concern about outdated or inaccurate guidance, for example regarding 'as consumed' versus 'as sold' and what constitutes a fruit or vegetable.

Views against using nutrient profiling

3.22. Those who disagreed with the use of the NPM typically either stated that they disagreed with the concept of imposing any restrictions (typically individuals and industry respondents), or that they favoured whole category restrictions instead (typically non-industry respondents). Some third sector respondents favoured blanket restrictions for discretionary foods (based on WHO recommendations on ending childhood obesity), and especially if options 1 or 2 were implemented.

3.23. One manufacturer who was against restriction of any food in principle, provided feedback which supported the use of the 2004/05 NPM if the government were to introduce restrictions. The respondent noted though that the NPM classifies food as either 'healthier' or 'less healthy' and they suggested the adoption of a more nuanced approach with a 'step category' (i.e. that sits between 'healthy' and 'less healthy') that should be subject to less promotional restrictions than the higher HFSS products. The respondent suggested this would incentivise reformulation and recognise efforts made by industry.

3.24. Other concerns included that the NPM is only suitable for children over five and adults not on prescribed or recommended diets, and that the approach could generate negativity towards fat in foods when in practice fat is needed for a healthy diet.

Version of the Nutrient Profile Model (NPM)

3.25. There was support from a few third sector respondents for using the 2018 NPM (if finalised). The importance was noted of a clear evidence-based appraisal of a product, which could be carried out using an up to date NPM. However, one noted that the NPM alone is not sufficient to determine whether food is healthy and was concerned that by prioritising HFSS products the industry would pivot towards promoting ultra-processed non-nutritious foods low in fat, salt and sugar. The respondent felt that other approaches were required to complement the regulations, such as certification schemes for foods meeting minimum standards of freshness and nutritional content.

3.26. Industry respondents were far less supportive of using the 2018 NPM and favoured the 2004/2005 model instead. The primary concern with the 2018 model was that divergence from the model used in England would create significant costs for manufacturers and put excessive burden on retail and businesses. Other concerns included that the 2018 model would:

• Widen the range of products that would be restricted due to a reduced sugar threshold; (expressed by 8 respondents)
• Disincentivise reformulation and/or the selling of reformulated products; (5)
• Result in Scottish consumers having fewer reformulated products available than other UK consumers; (2)
• Include the sugars in plant-based drinks in its definition of 'free sugars' (but not those in cow's milk), despite research to suggest that plant-based drinks should be treated the same as cow's milk and despite having been given parity in the Soft Drinks Industry Levy. Treating them differently for the purpose of restrictions on promotions in Scotland was thought to create an uneven playing field between animal and plant-based drinks which could be detrimental to consumer choice in respect of both health and environmental grounds. (2)

3.27. One manufacturer suggested a full consultation should be conducted if there is an intention to implement the updated NPM. Another highlighted that there is a lack of a final model and technical guidance associated with the draft 2018 model, meaning it is impossible to be appropriately consulted on, and suggested there is a need for an impact assessment of the adoption of the 2018 model and further consultation.

Targeting pre-packed products and non-pre-packed soft drinks with added sugar

3.28. The consultation paper proposed that restrictions would apply to pre-packed targeted foods and also unlimited refills of non-pre-packed soft drinks with added sugar for a fixed charge. Non-pre-packed foods such as loose bakery items, would not be subject to restrictions as relevant nutritional information to apply the NPM would be less readily available.

Question 3: If nutrient profiling were used, do you agree with the poposal to only target pre-packed products and non-pre-packed soft drinks with added sugar in respect of unlimited refills for a fixed charge?

Overview

3.29. Industry respondents were generally in favour of the proposal when taking into account both the number that indicated agreement (42%) and also those that selected 'other' or did not select a tick box but commented that their preference is for alignment with England. Non-industry respondents tended to disagree (52%) primarily due to concerns that this would undermine the overall effectiveness of the legislation by introducing loopholes. Individuals were mixed - 53% agreed primarily due to viewing the approach as sensible, however 42% disagreed primarily due to sharing the concerns held by non-industry respondents. The tick box responses are shown in Table 3.3.

Table 3.3 Whether only pre-packed products and non-pre-packed soft drinks with added sugar in respect of unlimited refills for a fixed charge should be targeted

Answer	Organisations				Individuals
	Industry		Non-industry
	n	%	n	%	n	%
Yes	17	42%	6	19%	20	53%
No	5	12%	16	52%	16	42%
Don't know	2	5%	1	3%	2	5%
Other	3	7%	3	10%	0	0%
Not answered	14	34%	5	16%	0	0%
Total	41	100%	31	100%	38	100%

Agreement with the proposal to include pre-packed and non-pre-packed soft drinks

3.30. Across all respondent types, those in favour of the proposed approach suggested it was practical and pragmatic. Industry respondents also cited again the importance of alignment with restrictions in England.

3.31. One industry representative body agreed but noted concern that micro and small businesses – such as bakers and cafes would be unable to comply.

Disagreement with the proposal to include pre-packed and non-pre-packed soft drinks

3.32. Generally, those that disagreed were in favour of restricting non-pre-packed products because they were concerned that not doing so would introduce loopholes in the legislation and thereby undermine its effectiveness. Predominantly it was individuals and non-industry respondents that held this view. Some public sector respondents suggested there is a need to target loose foods specifically in the out of home environment where loose HFSS foods were noted to be prominently available, such as, bakeries and takeaways. There was concern that the legislation should prevent businesses from using tactics to avoid restrictions, for example, providing a free doughnut with a bought coffee, or moving away from packaging to avoid restrictions.

3.33. A number of industry respondents drew attention to the disparity created by exempting non-pre-packed foods and suggested there is a need for a level playing field across all HFSS products. Responses also expressed concern about a potential distortion of the marketplace, where those providing nutritional information were penalised, and noted the possibility that non-pre-packed HFSS would be promoted in their place resulting in consumers opting for less healthy non-pre-packed foods. This was thought to present a confusing message, and to be likely to reduce the impact of the measures.

3.34. Some (non-industry) respondents disagreed with the consultation statement that businesses may not have access to nutritional composition. It was suggested that mandatory calorie labelling and requirements regarding knowledge of ingredients in products meant that information was available to include non-pre-packed goods (including in the out of home sector) within legislation.

3.35. Other issues each raised by a small number of respondents included:

• The need to future proof regulations against new ways of purchasing food, including reductions in packaging;
• More information is desired to understand how the policy will interact with mandatory calorie labelling in the out of home sector;
• Restrictions should apply to non-pre-packed foods in large businesses only.