Ending the sale of energy drinks to children and young people: consultation analysis

Executive summary

Introduction

1. From 29 October 2019 to 4 February 2020, the Scottish Government undertook a public consultation on Ending the sale of energy drinks to children and young people.

2. The aim of the consultation was to inform consideration of whether there is sufficient cause and evidence to support mandatory measures to end the sale of energy drinks to young people and, if so, what those measures should be. It should be noted that, as with all consultation exercises, respondents tend to have a particular interest in the subject area and that consultation responses are not representative of the views of the population as a whole.

The respondents

3. In total, 119 responses were submitted, of which 81 were from individual members of the public and 38 were from groups or organisations. A breakdown of the number of responses received by respondent type is set out in the table below.

Overview of findings

Question 1: Should sales of energy drinks to young people under the age of 16 be banned?

4. Just over half (53%) of respondents who answered the question agreed that the sales of energy drinks to young people under the age of 16 should be banned, while 32% thought the mandatory age limit should be 18 and 8% thought that there should be no age restriction. Overall, therefore, a substantial majority (85%) thought there should be a ban on sales to young people and 8% thought that there should not. Of the remaining 7%, 1% were unsure and 6% selected "other".

5. Among individual respondents there was a marked preference for a ban on sales under the age of 16 (60%), rather than 18 (31%), with 6% opposing a mandatory ban and 3% selecting "other". Among organisations, opinion was more evenly divided with 35% favouring a ban under the age of 16, 32% under 18, and 13% opposing a ban based on age. A further 3% of organisational respondents said they were unsure and 16% chose "other".^[1]

6. While a majority of NHS, HSCP or local authority respondents were in favour of a ban on the sales of energy drinks to under 16s, education or young people focused organisation respondents, health focused charity or campaign organisation respondents and health professional union or royal college respondents were more likely to support the age limit being set at 18.

7. Manufacturer or manufacturer representative body respondents were most likely to think that there should be no mandatory age restriction on the sales of energy drinks. While a small number of retailer or retailer representative body respondents indicated a preference for a ban on sales to under 16s, the majority either selected "other" or did not answer the closed question.

8. Around three quarters of respondents (72%) provided an additional comment at Question 1, including 97% of organisations.

Reasons for a mandatory ban on the sales of energy drinks to children and young people

9. Individuals and respondents from across most organisation types cited a range of health-related concerns relating to consumption of caffeine and/or sugar.

10. Physical issues identified most frequently as associated with consumption of energy drinks were sleep disturbance, headaches, tooth decay, type 2 diabetes and obesity. Behavioural issues highlighted included hyperactivity, lack of concentration, aggressive or disruptive behaviour, increased symptoms of anxiety, depression, mood swings and irritability.

11. A small number of respondents suggested that mandatory restrictions could create a more level playing field for retailers compared to the current voluntary restrictions under the British Soft Drinks Association Energy Drinks Code of Practice.

12. Reasons for a mandatory ban on sales to under 16s: The most frequently given reason for supporting a mandatory ban on sales to under 16s was that this would align with policy in the rest of the UK. A number of retailers or retailer representative bodies and NHS, HSCP or local authority respondents highlighted this issue. It was also argued that in Scotland a child legally becomes an adult at 16, and can, for example, vote, get married or join the armed forces. Other points raised included that mechanisms are already in place for preventing sales of other products to under 16s, and that a mandatory age of 18 would put energy drinks into the same category as tobacco and alcohol, potentially undermining messages about the health harms associated with these products.

13. Reasons for a mandatory ban on sales to under 18s: Individuals, health focused charities or campaign organisations, and health professional unions or royal colleges were most likely to give a reason in support of a mandatory ban on sales to under 18s. The reasons given most frequently were that this would be in line with the age limit in force for the sale of alcohol or tobacco and would be simple to implement because retailers already have procedures in place in order to restrict sales of alcohol and tobacco.

14. Other comments included a suggestion that, in line with UNCRC Article 1, 18 is the legal age of adulthood, and also that a mandatory age of 18 would be in line with other European states that have implemented restrictions. Setting the age limit at 18 would also help to address an issue of proxy purchase for younger pupils by 16 and 17-year olds that could arise if the age limit were set at 16. The issue of 16 and 17-year olds not carrying appropriate ID was also highlighted.

Reasons there should be no mandatory ban on the sales of energy drinks to children and young people

15. A small number of manufacturers or manufacturer representative bodies argued that energy drinks are not the major source of caffeine in the diet of children in Scotland. A small number of individual respondents argued that Government should not be involved, that banning a substance makes it more attractive or that measures such as education and portion size reduction should be tried first.

16. Other comments included that there is a lack of suitable scientific evidence to support restrictive measures against energy drinks, and no credible evidence for negative effects of energy drink consumption in children and adolescents.

Question 2: If implemented, are there any places where energy drinks are currently sold, that should be exempt from mandatory age restrictions?

17. Just over four fifths of respondents (81%) commented at Question 2, including 87% of organisations.

18. The most common position across a majority of organisation types was that there should be no exemptions. This view was particularly common among respondents who advocated a mandatory age limit of 18.

19. It was argued that for a ban to be effective it should be applied to all retailers in order to avoid loopholes, create a level playing field and avoid some firms being given an unfair commercial advantage. Parallels were drawn with the rules in place to prevent sales to young people of other age-restricted products such as cigarettes and alcohol.

20. In relation to vending machines specifically, the most frequent position across a majority of organisation types was that energy drinks should be banned from vending machines. Vending machines were seen as difficult to monitor or regulate and to create potential loopholes for the sales of energy drinks to children. An approach that limits the sales of energy drinks from vending machines to areas where there are few children was opposed. It was argued that an outright ban would be the most effective way to prevent sales in places where there is no age verification on entry.

21. A small number of manufacturer or manufacturer representative bodies and retailer or retailer representative bodies argued that restrictions on vending machines are unnecessary. These respondents pointed to existing voluntary codes of practice and considered banning sales from all vending machines to be disproportionate.

Question 3: Please comment on our proposals for enforcing any requirements that are implemented.

22. Around three fifths of respondents (59%) commented at Question 3, including 84% of organisations.

23. The most frequently made point was that enforcement requirements for energy drinks should follow those for tobacco or alcohol. There was also a call for engagement with local authorities, trading standards and other relevant representative bodies to ensure that proposals for enforcement and implementation are pragmatic, reasonable and well-resourced.

24. Further comments in relation to specific aspects of enforcement included the following:

• Enforcement authority and activity: There was support for enforcement by local authorities and trading standards and it was noted that trading standards have a broad range of experience around enforcing age restrictions.
• Verifying age: Lack of ID was predicted to cause problems for young people – and for the retail staff who have to serve them.
• Offences: A small number of respondents suggested that it should be made an offence to purchase an energy drink for someone else under the age restriction, or that it would be appropriate for the Scottish Government to give consideration to doing so.
• Fixed penalty and compliance notices: There was support for use of fixed penalty notices, which were seen to be an effective tool for dealing with breaches and it was observed that fines could be imposed as part of either civil or criminal sanctions.
• Developing guidance: There was support for developing ministerial guidance to be issued to local authorities and for an implementation guide for retailers. This, combined with proactive education and awareness raising, was suggested to be a better approach than resorting to criminal enforcement.

Question 4: Please comment on our proposals for evaluating any policies that are implemented.

25. Just under half of respondents (46%) commented at Question 4, including 74% of organisations.

26. Across the majority of respondent types, there was often agreement that the proposals are broadly appropriate.

27. Other comments included that engagement with children and young people throughout the process, including evaluation of impact, will be important. It was argued that in order to understand impacts on the health and wellbeing of children and young people their views and opinions need to be sought, measured and followed over time.

28. Respondents also suggested additional aspects they thought should be evaluated. Most frequently it was suggested that unintended consequences – such as substitution with other highly caffeinated or high sugar products – should be monitored. Other suggestions included: assessing any post implementation rise in anti-social behaviour towards shop staff; monitoring levels of non-compliance, enforcement and penalties imposed; assessing how consumption is affected by socio-economic status and whether the policy has a differential impact; and exploring what drives consumption of energy drinks amongst young people.

Question 5: If you have implemented age restrictions for energy drinks, please describe any effect, positive or negative, that this has had on your business.

Question 6: If you do not have age restrictions in place for energy drinks, please describe any effect, positive or negative, that implementing such restrictions would have on your business.

29. Questions 5 and 6 were marked for retailers only. Six retailer or retailer representative body respondents answered one or both of the questions.

30. A retailer respondent reported that when they implemented a voluntary ban, they drew on the experience of restricting the sales of alcohol to under 18s to ensure their approach to energy drinks was equally robust by implementing a Think 25 policy. This included retraining all checkout staff to apply Think 25 to any customers trying to purchase energy drinks.

31. One retailer representative body respondent stated that members already enforcing a ban had seen a fall in sales whilst another reported that feedback from a small survey of their members had suggested the impact would be minimal on their businesses. Other comments included that the introduction of any measure of this type would require financial investment due to system changes and training requirements. Any mandatory age restrictions should be UK-wide so that retailers can treat the UK as one market, and that vending machines in workplace settings should not be subject to age restrictions because there are generally no under 16s on site.

Question 7: What, if any, impact do you think applying mandatory age restrictions to sales of energy drinks would have on businesses?

32. Just over half of respondents (53%) commented at Question 7, including 66% of organisations.

33. A small number of respondents, including some individuals, simply suggested either that they did not think mandatory age restrictions on the sales of energy drinks would have any impact on businesses or that any impact would be minimal. This was sometimes connected to a proportion of businesses already operating a voluntary ban on the sales of energy drinks to under 16s.

34. Volume of sales: an NHS respondent cited the recent evaluation of the Healthcare Retail Standard (HRS) which was reported to show that although overall sales fell following implementation of the programme, they have started to improve as new products have been trialled. Other comments relating to a limited impact on businesses included that children or young people will be likely to shift to other soft drink purchases should energy drinks not be available and that introducing a consistent approach across all retailers would create a level playing field for all sellers.

35. It was also suggested that there could be a positive benefit to local businesses around schools, as they could be part of the effort to promote improved health within their community. School meal services may gain extra customers in the case of young people whose primary motivation for leaving school at lunchtime was to purchase an energy drink.

36. Other types of impact: Concerns raised included that a mandatory age limit of 18 could lead to reputational damage to the energy drinks industry by incorrectly putting energy drinks into the same category as alcohol and tobacco. Also, that carrying out age verification checks would place a disproportionate burden on retailers, including through costs for staff training and the development of in store materials. There were also concerns about any divergence from the existing EU framework on energy drinks, particularly in the context of Brexit, and that additional regulation in Scotland has the potential to have an adverse effect on trade between Ireland and Scotland in particular.

Question 8: What, if any, impact do you think implementing mandatory age restrictions to sales of energy drinks will have on people based on any of the following characteristics: age, sex, race, religion, sexual orientation, pregnancy and maternity, disability, gender reassignment, marriage or civil partnership, socioeconomic disadvantage.

37. Just under half of respondents (47%) commented at Question 8, including 53% of organisations.

38. Most frequently, respondents thought a ban would have a positive age-related impact. The benefits to children and young people tended to be described in terms of health benefits, including in relation to reduced rates of childhood obesity. It was suggested that if the mandatory age limit is set at 16, this could negatively impact 17-year olds since they are more likely to consume higher volumes of energy drinks.

39. An alternative perspective was that implementing a ban on sales to under 18s would unfairly restrict those aged 16 and 17 from choosing a safe, functional product.

40. After age, socioeconomic disadvantage was the protected characteristic on which respondents thought a ban could have an impact. Comments often focused on links between obesity and socioeconomic status and the resulting consequences for health inequalities. Research indicating that children eligible for free school meals are more likely to be frequent consumers of energy drinks was noted.

41. The other two characteristics identified as potentially relevant were pregnancy and maternity, partly because current UK Government advice recommends restricting caffeine intake during pregnancy, and disability, partly because people with a learning disability may not understand the health issues around consuming energy drinks.

Question 9: Please outline any other comments you wish to make.

42. Just over half of respondents (51%) commented at Question 9, including 82% of organisations.

43. Comments were fairly wide ranging with some reiterating support for or opposition to the policy. Points not covered elsewhere included that the Scottish Government should go beyond the actions currently proposed. For example, by taxing high caffeine energy drinks, placing restrictions on price promotions and multipack offers or by introducing minimum pricing.

44. Other suggestions included restrictions on advertising of energy drinks, including until after a 9pm watershed on television, or more generally across other media platforms, and on sports sponsorship by energy drink brands. Other issues highlighted included the need to focus on education about energy drinks, on the labelling of energy drinks and the need for an easily understood and straightforward definition for energy drinks.