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

Section 6. Enforcement and implementation

Summary of our proposals

We propose to give local authorities the role of enforcing the proposed policy.

We propose to give Ministers powers to issue guidance to local authorities to support effective enforcement of the proposed policy.

We propose to develop materials for industry to support effective implementation.

Background

144. As set out in the Scottish Regulators' Strategic Code of Practice, enforcement functions should be delivered in a way that is transparent, accountable, proportionate, consistent, and targeted only where necessary.

145. Local Authorities (LAs) are responsible for enforcing existing food law in the businesses within scope of this policy. In our previous consultation, we recognised that LAs are well placed to support with the delivery and enforcement of this policy and sought views on our proposals for enforcement and implementation, which were as follows:

• giving LAs the role of enforcing the proposed policy, with relevant powers and relevant offences created
• giving Ministers powers to issue guidance to LAs on matters for which LAs should have regard when discharging their functions (This could include, for example, guidance on location restrictions (e.g. at checkouts, end-of-aisle etc.)
• publishing a guide for industry to support effective implementation.

146. In feedback to our previous consultation, non-industry organisation respondents generally indicated agreement with the proposals for enforcement. Industry respondents either indicated agreement or did not offer a view. Views from individuals were mixed.

147. Respondents expressed a number of views in relation to the proposals including: (i) concern about the potential burden that enforcement would place on LA teams and suggestions that separate funding would be required for this function; and (ii) concern that sufficient lead-in time would be needed to implement the changes.

UK Government regulations for England

148. Enforcement of the UK Government regulations in England will be carried out by food authorities in their local areas. Whilst the local government landscape differs in England, overall this is a comparative approach to what we are proposing for Scotland, using existing arrangements to create an appropriate and proportionate approach to regulation. Further details of how the regulations will be enforced in England is set out in the UK Government regulations, explanatory memorandum and implementation guidance.

Welsh Government consultation

149. The Welsh Government do not cover delivery or enforcement of their proposals in their consultation, noting that a further technical consultation will follow that will cover these issues.

Our proposals

150. Taking into account the feedback we received to our previous consultation, and on the basis that LAs remain responsible for enforcing existing food law in the businesses within scope of this policy, we propose that LAs are best placed to support delivery and enforcement of the policy outlined in this consultation paper.

151. We propose that local authorities are given relevant enforcement powers, including powers of entry and powers to obtain information. Similar to food safety legislation, we are considering that local authorities would also have relevant powers for handling non-compliance with legal requirements.

152. The proposed approach would help to minimise additional demands on: (a) existing enforcing authorities, and (b) those subject to the restrictions. For example, given food businesses must already register with their local authority, we do not anticipate a need for a new register for this policy. We also recognise the importance of clarity in ensuring the effective implementation of this policy. To support this, we would plan to work with LAs and industry in developing the regulations and guidance.

153. We want to take this opportunity to seek views on the practicalities of enforcement, based on points raised by respondents to the previous consultation, outlined at paragraph 146-147. This includes consideration of resourcing, guidance and adequate lead-in times for implementation of the policy.

154. We propose to work closely with the Convention of Scottish Local Authorities (COSLA) and others to consider resourcing, training and guidance to support effective and consistent implementation of the policy. We would also welcome views on these issues to help inform our discussions.

155. In relation to lead-in times, we will need to allow sufficient time to enable both LAs and businesses to prepare for implementation of the policy. We propose to engage both LAs and businesses to discuss what a suitable lead-in time might be. We would welcome views on this issue to help inform our discussions.

156. We will also work closely with COSLA and others to consider an appropriate and proportionate enforcement regime that supports compliance. This will include consideration of appropriate guidance and enforcement powers. We will consult further on the detail of our enforcement proposals ahead of implementation.

Support for industry

157. We propose to develop materials for industry, co-designed by industry representative bodies, to support effective implementation.

Other issues

158. Further to the feedback we received to the 2018/19 consultation, we are also mindful of the impact of the coronavirus pandemic and also EU exit on LAs in terms of their capacity and resources, as well as on consumers and the food and drink industry. We are therefore seeking further views on the proposed approach to enforcement, including whether it remains appropriate.

Questions

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

Yes

No

Other – please specify who

Don't know

Please explain your answer.

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?

Please explain your answer.

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

6 months

12 months

18 months

24 months

Other – please specify

Don't know

Please explain your answer.

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?

Please explain your answer.