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

8. Enforcement and Implementation (Qs 22-25)

8.1. The consultation paper set out the proposals for enforcement and implementation of the restrictions. They sought views on (i) whether local authorities are best placed to enforce the policy, (ii) what resources would be required (by local authorities if they were to enforce the policy) to support enforcement, (iii) what would be an appropriate lead-in time to prepare for enforcement and implementation of the policy, and (iv) whether there are any further considerations, for example as a result of the coronavirus pandemic, EU exit or rise in cost of living, that need to be taken into account in relation to enforcement.

Enforcement by local authorities

8.2. The consultation paper proposed that local authorities (LAs) are best placed to support delivery and enforcement of the policy on the basis that they remain responsible for enforcing existing food law in the businesses within scope of the policy. It notes that the proposals are 'comparative' to the approach for enforcement of the UK Government regulations in England.

Question 22: Do you agree with the proposal that local authorities are best placed to enforce the policy?

Overview

8.3. Individuals (63%) tended to support the proposal for local LAs to enforce the policy. Non-industry respondents were more muted in their support (48%) and industry respondents even more so (32%) although disagreement was very low among the latter two. A substantial proportion of industry and non-industry respondents selected 'don't know' or did not select a tick box of which many did not provide a comment/view. Table 8.1 displays the results.

Agreement with proposals for enforcement

8.4. Those that agreed with the proposals acknowledged that local LAs are well placed to enforce the restrictions based on their existing knowledge and relationship with relevant businesses. A number noted concerns as to whether LAs have sufficient resources (considered in detail in respect of question 23).

8.5. A number of industry respondents expressed support for the approach on the basis that it would facilitate alignment with the approach to regulation in England. A number of industry respondents (particularly retailers) suggested the 'Primary Authority' model^[14] should be adopted in Scotland to ensure consistent interpretation of the requirements.

8.6. A small number of non-industry respondents expressed concerns about the extent to which industry would be involved in developing the approach given their vested interest.

Disagreement with proposals for enforcement

8.7. The main reason for disagreement was a concern that LAs do not have sufficient capacity to be able to undertake enforcement. Two individuals suggested enforcement should be undertaken nationally for consistency.

8.8. Two manufacturers suggested there would be significant difficulties for an enforcing authority to distinguish between products using the NPM since they would not be in a position to audit the accuracy of the NPM claims being made by manufacturers.

Other considerations

8.9. Other considerations provided by respondents included:

• A suggestion that online marketing of HFSS products could be monitored 'centrally';
• A suggestion around a need for a body to support LAs with enforcement and to supervise their approach;
• One respondent commented that consideration be given to a partnership approach with NHS boards;
• A suggestion that the Government should support the additional resources that would be required by the LAs and that businesses should not have to incur further costs (on top of those already associated with the changes needed to comply) through funding the regulation.

Resources to support enforcement

Question 23: If local authorities were to enforce the policy, what resources (for example staffing/funding) do you think would be required to support enforcement?

8.10. In total 47 respondents gave a specific response to the question. Across all respondent types the view was that LAs would need appropriate funding in order to:

• Ensure sufficient staff are in place;
• Provide training to staff on the requirements;
• Put systems in place;
• Create resources and clear guidance to assist LA staff, businesses, and the public.

8.11. Some industry and non-industry respondents noted the importance of consistency across LAs and highlighted that sufficient guidance, resources and capacity would need to be in place to ensure parity in the approach to enforcement.

8.12. Other suggestions (each by one respondent) included:

• An 'app' could be created that would provide information on all restrictions that apply to a specific product, upon scanning the barcode; (public sector)
• There should be a central government service able to provide guidance to LA enforcement staff; (individual)
• An education route into the Environmental Health Officer profession would be needed to ensure sufficient capacity to undertake the work required; (individual)
• Enforcement should not be restricted to Environmental Health Officers and that LAs should be able to call on others such as Trading Standards Officers and Licensing Support Officers to undertake the work. (public sector)

8.13. One 'other' organisation respondent had conducted research of UK businesses and indicated they had found a 'concerning' lack of preparation and awareness in the industry for the restrictions coming into force and suggested that outreach and education work with businesses would be essential.

Lead-in time

Question 24: What do you think would be an appropriate lead-in time to allow preparation for enforcement and implementation of the policy?

Overview

8.14. Industry respondents tended to favour 24 months (32%) although some of those 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 restrictions in England. Individuals were mainly split between 12 months (37%) and 24 months (26%). Non-industry respondents were split across the options and a relatively high proportion selected 'don't know' or did not select a tick box (some noted this issue was outside of their expertise). Table 8.2 displays the tick box responses.

Views in relation to lead-in time

8.15. Respondents that selected a specific timeframe (regardless of what it was) tended to point to it being an appropriate amount of time for businesses to make arrangements for the changes, such as re-designing store layout and training staff.

8.16. 12 months (or a minimum of 12 months) was viewed as feasible by some industry respondents if the restrictions are consistent with those in England.

8.17. Respondents indicating 24 months suggested this amount of time would be needed for LAs to prepare their workforce to enforce the restrictions; that time was needed for businesses and the LAs to recover from the impacts of the Covid-19 pandemic before changes were introduced; and that the public would need to adapt to the cost of living crisis before changes that affect prices are introduced. Other specific reasons for specifying 24 months included:

• That other regulation was being introduced (such as calorie labelling) and that this should be taken into account in timescales set; (industry representative body)
• Existing restrictions in Scotland in relation to the sale of alcohol meant that if businesses needed to re-locate alcohol in order to facilitate the location restrictions on targeted foods, they would have to amend licenses for each store which would take time and could result in a surge of applications to the council which councils would need to be prepared to respond to; (retailer)
• A long timescale would allow food producers to reformulate, and in particular allow smaller producers to catch up with the larger producers that already had reformulation work underway. (third sector)

Other lead-in time

8.18. A number of industry respondents noted that it was not yet known whether certain businesses would be included in restrictions and therefore the final scope of the restrictions would impact on the lead-in time required. Similarly, a number of industry respondents felt that the exact amount of lead-in time would relate to how different the Scottish restrictions are to those implemented in England, indicating that the more similar they are, the less time would be needed.

8.19. One individual suggested there should be a two phased launch with larger businesses able to adapt quicker and therefore the restrictions should apply to them first, and smaller organisations needing longer and therefore the restrictions should apply to them subsequently.

Other considerations

8.20. Other considerations raised by respondents included:

• The lead-in time should start from the point where clear guidance is introduced; (industry respondents)
• In addition to the lead-in time, there should be a period of grace before the restrictions are enforced to allow businesses time to refine their approach and ensure they are compliant; (industry representative bodies and manufacturers)
• There should be one unified implementation date for all four nations within the UK; (industry respondents)
• If the lead-in time was too long, the larger companies may be able to find loopholes to avoid being impacted by the restrictions and also that piloting the approach before roll-out would be beneficial; (public sector)
• There is a need to develop clear definitions and undertake a public awareness campaign so that customers can understand the restrictions and how they may affect them. (public sector)

Further considerations for enforcement

Question 25: Are there any further considerations, for example as a result of the coronavirus pandemic, EU exit or rise in cost of living, that need to be taken into account in relation to enforcement?

8.21. In total 66 respondents gave a specific response to the question. Many respondents did not necessarily limit their responses to enforcement specifically.

8.22. A number of respondents indicated that enforcement would pose challenges for LAs in the current climate. LAs were noted to:

• Be occupied with clearing the backlog caused by the pandemic;
• Have limited resources; and have already experienced an increase in responsibilities for food regulations on account of the EU exit.

8.23. One public sector respondent made the specific point that the scale of resources needed to support businesses and undertake enforcement activities would reduce the resources available to cover existing work (such as inspection of high-risk businesses).

8.24. Industry respondents noted that businesses had gone through considerable disruption already with the pandemic, EU exit and the introduction of other regulation. They were concerned about how businesses would cope with the additional costs associated with making changes. They also noted there have been considerable challenges in the supply chain and staffing as a result of recent experiences and that these may impact on their ability to prepare for change. With other requirements also pending such as the Deposit Return Scheme, there was a view that a 'light touch' approach to enforcement would be appropriate.

8.25. Among those that made more general comments, across all respondent types, a consistent theme was that there were concerns about the current cost of living. Some specifically noted the proposals would result in increasing shopping costs for the public at a time when people are already struggling. Others noted that careful thought would need to be given to the timing of introducing restrictions to avoid exacerbating cost of living considerations.

8.26. However, a smaller number of respondents (particularly third sector organisations) highlighted that the restrictions would have a positive impact on the cost of living. This was on the basis that by discouraging people from buying more than they intended this would result in a reduction in expenditure. A small number of respondents (individuals and non-industry) also noted that in respect of the cost of living, it would be important to enable people to access lower cost healthy food.