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

2. Mandatory measures

2.1. The consultation paper explains that provision of energy drinks to pupils is not permitted in schools in Scotland. Shops on NHS sites are also required to prohibit the sales of energy drinks to under 16s. Facilities run by Scottish members of Community Leisure UK have restricted energy drink sales on their premises. Measures include either age restrictions of 16 or an outright ban on sales, including from vending machines. Local authorities have adopted similar restrictions in the leisure facilities they manage. Many retailers prohibit sales of energy drinks to under 16s on a voluntary basis. Whether a mandatory age restriction should be enshrined in legislation is now being considered.

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

2.2. Responses to Question 1 by respondent type are set out in Table 2 below.

2.3. In total, 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, 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".

2.4. 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".^[3]

2.5. It should also be noted, however, that a small number of respondents (primarily individuals) who selected "yes" – so indicated a preference for a ban on sales to under 16s – went on to note in their comments that they thought the age should be at least 16 or that they would also support 18.

Table 2: Question 1 Should sales of energy drinks to young people under the age of 16 be banned ?

Respondent type	Yes	No – the age limit should be 18	No – there should be no age restriction	Unsure	Other	Not answered	Total
Organisations
Education or young people focused organisation		2				2	4
Health focused charity or campaign organisation		4		1			5
Health professional union or royal college	1	3					4
NHS, HSCP or local authority	6	1					7
Manufacturer or manufacturer representative body	1		3		1	1	6
Retailer or retailer representative body	2				4	2	8
Other[4]	1		1			2	4
Total organisations	11	10	4	1	5	7	38
% of organisations*	35%	32%	13%	3%	16%
Individuals	48	25	5		2	1	81
% of individuals	60%	31%	6%		3%
All respondents	59	35	9	1	7	8	119
% of all respondents	53%	32%	8%	1%	6%

* Figures do not sum to 100% due to rounding

2.6. 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.

2.7. 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 two members of the retailer or retailer representative body group indicated a preference for a ban on sales to under 16s, the majority either selected "other" or did not answer the closed question.

Question 1 continued. Please describe any factors you have taken into consideration and provide any evidence you have to support a specific age restriction.

2.8. A total of 86 respondents (37 organisations and 49 individuals) made a further comment at Question 1. A large majority gave reasons in support of a mandatory ban on the sales of energy drinks to children and young people.

2.9. There was substantial overlap between the issues raised by those who supported a ban under the age of 16 and those who preferred a mandatory age restriction to be set at 18. To avoid repetition, the analysis below covers both sets of respondents together, ending with the reasons that respondents chose one age limit or the other, where this was explained. The analysis also includes the views of the health focused campaign organisation respondent who selected the "unsure" option, and who explained that their members agreed that there should be a ban but were divided on the age restriction they favoured. Likewise, the two education focused organisations who have been recorded as "not answered" did clearly favour a ban on the sale of energy drinks. One of these respondents reported results from their own survey showing relatively evenly divided opinions on this point. Points made by respondents who selected "other" or did not answer the question are included where most appropriate.

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

Health-related concerns

2.10. Respondents often cited a range of health-related concerns relating to consumption of caffeine and/or sugar. Individuals, education or young people focused organisations, health focused charities or campaign organisations, health professional unions or royal colleges and NHS, HSCP or local authority respondents raised these concerns.

2.11. It was suggested that there is no evidence that caffeine or other stimulants found in energy drinks have any benefits in the diet of children and young people. It was also suggested that there is no evidence that energy drinks are safe, while there was reported to be limited but growing evidence of negative impacts. It was proposed that a precautionary principle^[5] should therefore be adopted.

2.12. A number of health focused charities or campaign organisations raised concerns about the amount of sugar in energy drinks, including a report that some contain the equivalent of 20 teaspoons of sugar in a 500-millilitre serving. It was also noted that while there has been a reduction in consumption of sugar-sweetened beverages in high income countries, energy drinks have not followed this pattern. In the UK, it was reported that around two thirds of children aged 10-17 consume energy drinks, with boys consuming more than girls.

2.13. The health concerns identified most frequently as being associated with the consumption of energy drinks were:

• Sleep disturbance
• Type 2 diabetes and obesity caused by high levels of sugar with consequences including increased blood pressure, elevated risk of heart disease, stroke and some forms of cancer. Sleep disturbance was also reported to be associated with greater risk of obesity during childhood and adolescence
• Headaches
• Tooth decay caused by high levels of sugar and erosion of enamel as a result of the acidity of carbonated drinks.

2.14. In addition, there were reports that consumption of energy drinks may be associated with stomach aches, kidney disease, reduced calcium absorption in the small intestine and reduced calcium deposition in bones, and effects on development of neurological and cardiovascular systems. Emerging evidence of a link between use of alcohol and energy drinks was also reported and argued to be of concern since alcohol may cause a number of different types of cancer.

2.15. From a health inequalities perspective, an NHS respondent reported that evidence has shown universal interventions that change elements of people's environment are likely to be equally or more effective among disadvantaged groups where, in the case of energy drinks, higher levels of consumption are reported. There was also reference to evidence that indicates a link between lower socioeconomic status and higher rates of consumption of energy drinks and further research on this aspect was proposed.

2.16. The need to encourage young people to adopt healthy eating and drinking habits was also argued to be important, with a suggestion that banning the sales of energy drinks to young people would send a clear message regarding their potentially harmful effects. An NHS, HSCP or local authority respondent acknowledged that a ban may make drinks more desirable to children, possibly making them even more attractive when they are older. However, they reported that the existing sugar levy has not been sufficient to reduce demand, and that branded energy drinks represent one of the biggest pull factors away from school canteens.

Behavioural issues

2.17. Behavioural issues associated with consumption of energy drinks were reported to include hyperactivity, lack of concentration, and aggressive or disruptive behaviour. Individuals, education or young people focused organisations, health focused charities or campaign organisations and health professional unions or royal colleges were amongst those highlighting these issues. Also highlighted were:

• Increased symptoms of anxiety
• Depression
• Mood swings and irritability
• Attention seeking or sensation seeking behaviours including positive associations with risky behaviours such as binge drinking and substance abuse.

2.18. As a result, it was argued there are impacts on educational attainment, both for those consuming energy drinks themselves and for others. Respondents who identified themselves as teachers or as working in schools sometimes described seeing the effects of energy drinks on pupils. For example, an individual respondent commented that:

"As a teacher, I see first-hand the impact these drinks have on the focus and attention of my pupils who consume the drinks before, during and after school. It is not a positive one and not only does it impact on themselves but also their peers who are disadvantaged by having to deal with discipline issues that arise."

2.19. A health focused campaign organisation cited evidence from their own survey showing teachers to be strongly in support of a ban on the sales of energy drinks to children and young people. A health focused charity noted that both research evidence and anecdotal reports from parents indicate that some children consume energy drinks as an alternative to breakfast and that evidence suggests that consumption of energy drinks is also associated with more regular consumption of fast food.

Existing sales and marketing

2.20. Comments on the existing voluntary restrictions imposed by retailers under the British Soft Drinks Association (BSDA) Energy Drinks Code of Practice came from a health focused campaign organisation, a health professional union and a small number of retailer or retailer representative body respondents.

2.21. The comments included a view from a retailer representative body that there is a good case for bringing these into legislation but that a common approach across the UK would be preferred. The health focused campaign organisation considered that a mandatory restriction would reinforce compliance and they were among a small number of respondents who suggested a mandatory restriction could create a level playing field for retailers. Despite the voluntary code, it was suggested that there are still many opportunities for young people to purchase energy drinks.

2.22. Although not marketed to children, the branding used on energy drinks was said to be attractive to children and young people and it was argued that marketing and dependence on the product lead to repeat purchasing. It was observed that energy drinks are marketed in a way that other caffeine containing drinks such as tea and coffee are not, and it was argued that packaging requirements should be more like those for cigarettes, for example plain packaging. (Potential implications of the proposed ban for advertising are noted at the end of this chapter.)

Reasons for a mandatory ban on sales to under 16s

2.23. 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.

2.24. The proposed extension of bans already in place in schools and on NHS sites was welcomed for bringing clarity for retailers and it was argued that some retailers who have already implemented a voluntary ban think legislation will make this easier to enforce. It was noted that mechanisms for preventing sales to under 16s exist for other products such as lottery tickets, petrol and spray paints.

2.25. A retailer noted they had committed to a voluntary ban to under 16s in recognition of harmful effects of high caffeine levels on children under 16. While a retailer representative body commented that they would welcome more research on energy drinks purchasing by young people and the factors that determine consumption.

2.26. It was argued that in Scotland a child legally becomes an adult at 16, and can, for example, vote, get married or join the armed forces. Adopting 16 as the mandatory age limit was suggested to support the United Nations Convention on the Rights of the Child (UNCRC) Article 12 (the right to be heard) and the principle of 'no decision about me without me'. Further, it was suggested that education is required to help young people make healthy decisions for themselves.

2.27. With respect to ID it was suggested that although a passport or provisional driving licence could be used as proof of age, the Scottish Government should explore how the Young Scot National Entitlement Card^[6] could be used in the same way to ensure a smooth introduction of an age restriction.

2.28. It was also argued that the mandatory age should not be 18 because this would put energy drinks into the same category as alcohol and tobacco, contradicting current medical advice and potentially trivialising the harms associated with alcohol and tobacco.

Reasons for a mandatory ban on sales to under 18s

2.29. 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 most frequently given for preferring to see a mandatory age limit set at 18 were that:

• This would be in line with the age limits in force for the sales of alcohol or tobacco.
• It would also be in line with several other European states that have implemented a ban at 18.
• It would be simple to implement because retailers already have procedures in place in order to restrict the sales of alcohol and tobacco.
• Evidence from the European Food Safety Authority (EFSA) suggests consumption of energy drinks is greatest among older adolescents aged between 15-17 years.
• It would be easier for schools with 16 to 17-year old pupils to enforce as a lower limit would allow 16 and 17-year olds to purchase energy drinks for younger pupils. This was argued as particularly important as there is no intention to make proxy purchase an offence.
• Many 16 to 17-year olds do not carry ID to prove their age.

2.30. Arguments were also made regarding what age a person should be considered to be an adult. Some respondents suggested 18 to be the legal age of adulthood or, more specifically, 18 was suggested to be consistent with UNCRC Article 1, which sets 18 as the upper boundary of childhood. It was also reported to be in line with statutory guidance accompanying the Children and Young People (Scotland) Act 2014.

2.31. UNCRC Articles 24 and 36 were also cited in favour of a mandatory age limit at 18 – Article 24 stating the right of the child to have the highest attainable standard of health and Article 36 a requirement to protect a child against all other forms of exploitation prejudicial to any aspect of their welfare.

2.32. The years between age 16 and age 18 were argued to be important because young people are still in education, may be sitting exams and make many important life choices. It was also noted that the effects of energy drinks are related to body weight and that children are still growing at age 16, and closer to their adult body mass at age 18.

2.33. A young people focused organisation respondent observed they often have to help young people withdraw from the effects of dependency on energy drinks. Similarly, an individual respondent reported:

"I manage a youth project and we try to enforce a no energy drinks rule, alongside no drugs and alcohol for young people attending our activities and services. We see very little distinction between young people's behaviour when consuming energy drinks, drugs or alcohol and we strongly believe that energy drinks should be age restricted to 18."

2.34. Acknowledging that a mandatory age restriction set at 18 would be higher than that proposed elsewhere in the UK, some respondents suggested that this would show Scotland taking its own position and implementing decisive action to protect young people.

2.35. A health focused campaign organisation suggested that the voluntary ban on sales to under 16s already implemented by many retailers demonstrates that restriction is possible but that it should not mitigate against choosing to make 18 the mandatory age in Scotland. They also reported that when responding to a question from the House of Commons Science and Technology Committee, only one large retailer had expressed a preference for a ban at 16 rather than 18.

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

2.36. The analysis of reasons for there not being a mandatory ban on the sales of energy drinks to children and young people is taken from the further comments of 11 respondents. These respondents were primarily manufacturers or manufacturer representative bodies and individuals.

2.37. Individual respondents sometimes 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.

2.38. 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. Children of all ages were reported to get significantly more caffeine from hot drinks than from cold drinks and, among 10 to 17-year olds in the UK, it was suggested energy drinks contribute 11% of total caffeine intake with 90% from other sources.^[7][8]

2.39. An 'other' respondent highlighted a study^[9] that found the amount of caffeine ingested from energy drinks by the heaviest consumers to be within the safe level proposed by EFSA, although their overall caffeine intake was not. Adolescents in the 95^th percentile were reported to consume an average of nearly 800 milligrams of caffeine per day, with 146 milligrams coming from energy drinks. The respondent argued that the consultation paper is therefore wrong to state that there is no evidence that young people overconsume caffeine from other caffeinated foods or drinks.

2.40. Further, energy drinks were suggested not to have unusually high levels of caffeine. For example, it was stated there was 80 milligrams of caffeine in a typical 250 millilitre energy drink, as opposed to 150 milligrams in a typical double espresso.

2.41. Likewise, the levels of sugar in energy drinks were argued not to be particularly high, with a typical energy drink containing 11 grams of sugar per 100 millilitres, approximately the same as a soft drink or fruit juice. Since energy drinks containing sugar are subject to the Soft Drinks Industry Levy it was argued that energy drink consumption is already dis-incentivised. One manufacturer noted that more than 69% of their energy drink varieties available in Scotland are currently low- or no-sugar, with this set to rise.

2.42. 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. Two manufacturer representative bodies argued that some reports overstate negative effects, relying on anecdotal evidence or on data prone to subjective bias and error, for example dietary recall.

2.43. A manufacturer and a manufacturer representative body quoted the finding of the Committee on Toxicity that there is currently no scientific evidence that energy drinks pose a specific risk to the health of children and adolescents. It was further reported that the House of Commons Science and Technology Committee have concluded that on balance, 'the current scientific evidence alone is not sufficient to justify a measure as prohibitive as a statutory ban on the sale of energy drinks to children'.^[10]

2.44. A manufacturer and two manufacturer representative bodies reported that regulators in Sweden and Norway had concluded that they could not support an age restriction on the sales of energy drinks. Sweden's National Food Agency was quoted as having found that energy drinks are not the main source of caffeine consumption among children and adolescents and that a ban would not be effective or proportional in order to reduce the consumption of caffeine among these age groups. The Norwegian Food Safety Authority was reported to have found a ban on the sales of energy drinks to children to be too invasive and therefore not proportionate.

2.45. The proposal for a mandatory ban on the sales of energy drinks to children and young people in Scotland was argued to be disproportionate, to adversely impact the industry, to be a burden on retailers and to restrict consumer choice, while failing to tackle the actual causes of obesity and caffeine consumption by children. Portion size control was suggested to be a better avenue for the Scottish Government to pursue.

2.46. A manufacturer suggested that the proposed ban could also perpetuate misconceptions regarding the safety of energy drinks.

2.47. Although opposed to a ban, two manufacturer representative bodies argued that, if implemented, the age limit should be set at no more than 16 years old. This position was explained with much the same arguments made by those who advocated a ban under the age of 16, referencing many activities that are legal at 16, or that a ban for under 18s would put energy drinks into the same category as alcohol and tobacco.

2.48. A manufacturer representative body also cited significant proactive voluntary action taken by the soft drinks industry to not market energy drinks to under 16s and argued that there is a strong case for maintaining the status quo. The manufacturers of energy drinks were argued to have taken meaningful steps to be clear about the suitability of energy drinks, to label these as not recommended for children and not to advertise or market energy drinks at under 16s in any media.

2.49. A retailer and a retailer representative body thought an outright ban in legislation would be a problem for vending machine operators, particularly since an offence for retailers to sell to minors is proposed. These respondents pointed to the voluntary restrictions already in place and argued this to be a more flexible approach. These issues are discussed further at Questions 2 and 3.

Implications for advertising

2.50. An 'other' respondent noted that a legal restriction on the sales of energy drinks to young people would be likely to have an impact on what is considered acceptable when advertising these products. It was suggested that, in the event of a ban, the Committee of Advertising Practice and the Broadcast Committee of Advertising Practice would be likely to consult publicly on corresponding advertising restrictions. The proposals were suggested likely to have implications for advertising analogous to the regulatory regime surrounding alcoholic drinks.

2.51. This respondent also commented that any differences in regulation between Scotland and the rest of the UK would be likely to present challenges in terms of the regulation of advertising, particularly with respect to online platforms that may not demarcate jurisdictions.