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

Section 4. Places that would be subject to restrictions

Summary of our proposals

We propose to apply the restrictions to any place where pre-packed targeted foods, and non-pre-packed soft drinks with added sugar in respect of unlimited refills for a fixed charge^[42], are sold to the public in the course of business. This would include:

• Retail such as supermarkets, convenience stores, discounters and bargain stores (including online sales)
• Out of home such as takeaway, home delivery services, restaurants, cafes, coffee shops, bakeries, sandwich shops and workplace canteens (including online sales)
• Wholesale outlets where there are also sales made to the public (including online sales)
• Other outlets such as clothes shops, tourist shops and pharmacies (including online sales)

We propose that the restrictions should also apply to online sales of pre-packed targeted foods from retail, out of home (OOH), wholesale outlets and other outlets selling targeted foods. This would include home delivery services such as third party apps that facilitate the order of food from a restaurant or takeaway to a consumer as well as online grocery shopping sites.

The restrictions would not apply:

• to other wholesale outlets (where sales are only to trade), because any promotion or marketing would not directly encourage the public to purchase the foods
• where sales are not in the course of business, for example charitable food and bake sales.

115. In terms of spend, food and drink in Scotland was worth £14.1bn in 2021. Of this, the majority (£10.4bn) came from the retail environment. The majority of calories we consume also come from food and drink purchased from shops and supermarkets. However, around a quarter of calories we consume now also comes from the OOH sector. This includes any food or drink bought and eaten away from home, including 'on the go' and any takeaway or home delivered food.

116. Over the past twenty years the internet has altered the shopping landscape, with many food purchases now made online. The proportion of food purchases made online, either in retail or OOH was increasing prior to the pandemic, but the pandemic accelerated this trend further. Analysis of Kantar data found that, Scotland saw a 31% increase in the market value of takeaways and a 54% increase in new customers to the delivery sector in 2020 compared to 2019, bucking the downward trend of the rest of the OOH market as a result of the trading conditions of the pandemic. Ordering takeaways using online restaurant apps and third party apps also saw a huge rise, which has continued into 2021^[43]. Kantar data also showed an increase in online grocery shopping with 64% more groceries bought online in 2020 compared to 2019. Online grocery shopping continues to represent a significant proportion of spend on food and drink in 2021 (around 8%)^[44] further underlining the importance of including online sales.

UK Government regulations for England

117. The UK Government has set out in its regulations the places where promotion restrictions will apply in England. The restrictions will apply to:

• all retail businesses which sell food and drink within scope of the regulations, including their franchises and online outlets
• OOH outlets in respect of free refill promotions.

The regulations will not apply to charity food sales.

118. It should be noted that these definitions take into account exemptions the UK Government has set out for businesses within scope of restrictions. The UK Government regulations, explanatory memorandum and implementation guidance provide further detail on the UK Government location restrictions. Exemptions are explored in more detail in section 5 of this consultation paper.

Welsh Government consultation

119. The Welsh Government propose in their consultation paper to follow the approach taken in UK Government regulations and outlined above.

Our proposals

120. We consulted previously in 2018/19 on proposals to apply restrictions to any place where targeted foods are sold to the public in the course of business, including retail, OOH, and wholesale outlets where there are also sales to the public, as well as other outlets such as clothes shops, selling targeted foods. We also proposed that the restrictions would not apply to other wholesale outlets (where sales are only to trade) and activities such as charity 'bake sales'.

121. We also sought views on whether restrictions should be applied online, and if so, to what extent.

122. Feedback to our previous consultation found that non-industry respondents agreed with the proposals that promotions restrictions should apply to any place where targeted foods are sold to the public. Industry respondents' views were more mixed, with some agreement and others providing no views. Individual views were also mixed. Agreement centred on the view that to be effective, the restrictions should apply equally, with some industry respondents voicing that there should be a 'level playing field'.

123. In respect of whether restrictions should apply to online environments, there was a high level of agreement amongst both non-industry and industry respondents. Among individual respondents, views were again mixed.

124. Having taken account of the evidence and the feedback to the consultation, we propose to proceed on the basis that restrictions on promotions would apply to any place, both physical premises and online, where pre-packed targeted foods (and non-pre-packed soft drinks with added sugar in respect of unlimited refills for a fixed charge)^[45], are sold to the public.

125. This would include:

• Retail such as supermarkets, convenience stores, discounters and bargain stores (including online sales)
• Out of home such as takeaway, home delivery services, restaurants, cafes, coffee shops, bakeries, sandwich shops and workplace canteens (including online sales)
• Wholesale outlets where there are also sales made to the public (including online sales)
• Other outlets such as clothes shops, tourist shops and pharmacies (including online sales)

126. The restrictions would not apply to:

• other wholesale outlets (where sales are only to trade), because any promotion or marketing would not directly encourage the public to purchase the foods.
• where sales are not in the course of business, for example food provided through charitable activities, for example bake sales.

127. This approach will help to ensure parity across types of business, both in physical stores and online. It is important that these regulations help to create a level playing field and mitigate competitive disadvantage which could arise, for example, if only retail outlets were subject to restrictions. Further, applying restrictions on our proposed basis would stop one outlet increasing its promotional activity to capture promotional sales lost by another, which would undermine the expected health benefits of the policy, including our aim to support healthier choices and healthy weight.

128. We recognise that the types of businesses we propose should be within scope of this policy goes beyond that set out in the UK Government regulations for England (see paragraph 117) and those proposed by the Welsh Government in their consultation. However, understanding that the food and drink industry often operates on a UK basis, we will explore the opportunities for consistency, where appropriate, with the definitions set out in the regulations for England and Welsh Government proposals. Exemptions are also explored in more detail in section 5 of this consultation paper.

Questions

We propose that promotions would apply to any place, both physical premises and online, where pre-packed targeted foods are sold to the public. This would include:

• Retail such as supermarkets, convenience stores, discounters and bargain stores (including online sales)
• Out of home such as takeaway, home delivery services, restaurants, cafes, coffee shops, bakeries, sandwich shops and workplace canteens (including online sales)
• Wholesale outlets where there are also sales made to the public (including online sales)
• Other outlets such as clothes shops, tourist shops and pharmacies (including online sales)

Question 14 - Which places, where targeted foods are sold to the public, should promotions restrictions apply to:

Retail - Yes/ No/ Don't know

Out of home - Yes/ No/ Don't know

Wholesale (where sales are also made to the public) - Yes/ No/ Don't know

Other outlets - Yes/ No/ Don't know

Don't know

Please explain your answer.

Question 15 - Are there other places/ types of business to which the restrictions should apply?

Yes/ No/ Don't know

Please explain your answer.

The restrictions would not apply to: other wholesale outlets (where sales are only to trade); and where sales are not in the course of business, for example food provided through charitable activities, for example bake sales.

Question 16 - Are there other places/ types of business which should not be within the scope of the restrictions?

Yes/ No/ Don't know

Please explain your answer.