A Healthier Future: analysis of consultation responses

3. Restricting price promotions (Qs 1-2)

3.1 The consultation paper discussed proposals to restrict the in-store promotion of food and drink high in fat, sugar and salt. Views were sought about (i) the type of price promotions that should be covered, and (ii) the types of food and drink which should be subject to promotional restrictions. These two issues were addressed by the first two consultation questions.

Types of price promotion restrictions

3.2 The consultation paper suggested that restrictions should apply to multi-buy, X for Y, and temporary price promotions. Respondents were asked if there were any other types of price promotion that should be included within these proposals.

Question 1: Are there any other types of price promotion that should be considered in addition to those listed above? Please explain your answer.

3.3 Altogether, 275 respondents (146 organisations and 129 individuals) provided comments at Question 1. There were clear distinctions in the views expressed by public health and third sector respondents on the one hand, and private sector and business respondents on the other.

3.4 In their comments, public health and third sector respondents generally (i) supported the proposal to restrict price promotions, (ii) identified other types of price promotions which should be restricted, and (iii) highlighted other mechanisms (both price-related and non-price-related) which could be used to encourage healthier diets.

3.5 By contrast, private sector and business respondents generally (i) expressed opposition to price promotion restrictions, (ii) highlighted the important purposes of promotions, and (iii) raised concerns or identified negative consequences which could result from restrictions on promotions.

3.6 Individual respondents and private sector weight management organisations (included in the ‘other organisational respondents’ category) were more likely to express views similar to those of public health and third sector respondents. However, a relatively small number of individuals expressed opposition to the proposals set out in the consultation paper.

3.7 While some respondents referred extensively to research in this area, other were less familiar with the evidence base and wanted to see more information about what works to change consumer behaviour towards a healthier diet.

3.8 All of these views are discussed in more detail below.

Views in favour of price promotion restrictions

3.9 Respondents who supported price promotion restrictions on products high in fat, sugar and salt often highlighted the high levels of obesity in Scotland. These respondents noted that in-store promotions were heavily weighted in favour of such foods, and that consumers are more likely to purchase such foods on promotion – and to purchase more than they otherwise would have had the foods not been on promotion. This group of respondents also pointed out that healthier alternatives were less likely to be available on promotion.

Additional price promotions which should be restricted

3.10 Respondents who supported restrictions on price promotions suggested a wide range of other types of promotions which they thought should be included within the scope of such restrictions. These suggestions were offered by public health and third sector organisational respondents as well as by individual respondents. Those suggested most often were:

• Meal deals which incorporate confectionary, sugared drinks or which encourage ‘upsizing’ – some respondents also referred to ‘bunching promotions’ (i.e. ‘hot drink and cake’)
• ‘Extra free’ promotions where the size of a product is temporarily increased, while the price remains the same
• Attaching or including free ‘gifts’ targeted at children within packages of cereals or other products; or gifts which can be claimed only after purchasing a certain number of a particular item
• The offer of a free bar of chocolate or a bag of crisps when buying certain newspapers.

3.11 Less commonly, respondents (usually individuals) suggested there should be restrictions on (i) the promotion of ‘festive chocolate’ (for example, large chocolate Easter eggs and Christmas selection packs) which are cheaper per 100g than a standard chocolate bar by the same manufacturer, and (ii) the use of free samples and tasting promotions. Individual respondents were also more likely than organisational respondents to make general suggestions about the use of promotions, rather than identifying a specific type of promotion as a candidate for possible restriction. Two examples were to: ‘limit the percentage reduction [in price] of discretionary foods’ ^[19] and ‘restrict how much foods high in fat, sugar and salt can be reduced by even as they go out of date’.

3.12 It was noted that multi-buy promotions are a common type of promotion used in Scotland, and it was suggested that a practical first step could be to restrict all multi-buy promotions for foods high in fat, sugar and salt. However, more often, public health and third sector respondents called for a universal ban on all price promotions. This group cited evidence which indicated that restrictions on just one (or a few) types of promotion were unlikely to be effective, as supermarkets would simply use other types of promotions instead.

Concerns – equalities issues

3.13 The main concern of respondents who supported actions to restrict price promotions was that such actions could have the potential to adversely affect the poorest people in Scotland. In particular, it was noted that people on low incomes are reliant on price promotions to feed their families. This group of respondents thought there was a risk that people / families living in poverty could be disadvantaged further by not being able to stretch their existing food budget to cover the cost of more expensive healthier food.

3.14 Thus, it was common for this group of respondents to advocate the use of promotions to encourage the purchase of healthier alternatives, such as fruit and vegetables, and they frequently called for a two-pronged approach which would involve banning all promotions of unhealthy foods, while making greater use of promotions to encourage the purchase of foods low in fat, sugar and salt. The point was repeatedly made that healthy options should always be more affordable than unhealthy ones. This group also wanted to see a greater emphasis on the use of universal price-related mechanisms (described in paragraph 3.16 below) to achieve this purpose.

Other mechanisms for encouraging healthier choices

3.15 Public health and third sector organisations and a wide range of individual respondents offered suggestions about other types of mechanisms – both price-related and non-price related – to encourage healthier food and drink choices among consumers.

3.16 Specifically, there were repeated calls to increase the price of unhealthy foods through universal mechanisms such as a tax or levy on foods high in fat, sugar and salt, while using subsidies (or tax exemptions) to reduce the cost of foods low in fat, sugar and salt. Less often, there were suggestions to establish a ‘minimum pricing scheme’ for foods and drinks that contain added sugar (e.g. a minimum price per quantity or proportion of sugar added).

3.17 Respondents in favour of price promotion restrictions pointed out that supermarkets make use of a variety of other tactics for promoting products which do not necessarily involve price – for example, the position and amount of space occupied by products within the shop. These respondents wanted to see action taken to restrict the positioning of foods high in fat, sugar or salt within supermarkets and shops – for example, avoiding the end of aisles, window displays, top shelves, immediately inside the entrance, and / or at the check-out.

Views opposed to restrictions on price promotions

3.18 Opposition to price promotion restrictions was mainly voiced by organisations in the food and drink manufacturing and retail sectors, the out of home sector, ^[20] and their representative bodies. A small number of individual respondents also expressed opposition to the proposals, arguing that if people want to purchase products high in fat, sugar and salt, they should be able to do so, and will do so regardless of the price. Some individual respondents described the proposals to restrict price promotions as an example of a ‘nanny state’ policy.

Food and drink industry initiatives to promote a healthier diet

3.19 Respondents from the food and drink industry (manufacturers, retailers, out of home providers and representative bodies) highlighted the wide range of actions they had already undertaken on a voluntary basis in relation to in-store marketing and promotions. Examples included: removing foods high in fat, salt and sugar from check-out areas; making a commitment to end multi-buy deals; taking steps to reduce portion sizes and / or to reformulate their products to reduce the sugar content.

3.20 These respondents frequently stated that they supported the Scottish Government’s ambition to promote healthier food and drink choices, but they saw price promotions as having important benefits (for businesses and consumers), and they were concerned that restrictions on price promotions would have a wide range of negative impacts. These respondents repeatedly emphasised that any measures to restrict promotions should be based on evidence, and they called for the Scottish Government to engage positively and collaboratively with the food and drink industry on this issue.

The purposes of price promotions

3.21 Respondents from the food and drink industry and other private sector respondents commented that promotions serve a number of purposes. In particular, they provide a way for retailers to (i) differentiate themselves from their competitors, (ii) respond to changing customer demand, and (iii) tailor their products to their customer base. They are, in effect, used to ‘encourage changes in consumer behaviour’ (e.g. to switch brands or stores, or to try new products). Thus, they were seen to be important for encouraging competition among retailers and for giving consumers greater value and choice.

3.22 This group of respondents emphasised that the use of price promotions is based on complex commercial negotiations and agreements between retailers and manufacturers (which vary for different categories of food). This, it was argued, makes it an unsuitable area for Government intervention.

Potential negative impacts of restricting promotions

3.23 Respondents from the food and drink sector and other business respondents identified a range of specific negative impacts – for consumers and for businesses – which could result from restricting promotions, including:

• Loss of business for supermarkets and small retailers: It was noted that the ability to compete on price is fundamental to businesses across all sectors. Respondents thought that restrictions on promotions would reduce the ability of supermarkets to compete against each other, lead to a loss of footfall in high street shops, and put further pressure on retail businesses which are already struggling in a highly competitive environment. Promotions were seen to be particularly important for small convenience stores which have ‘a low-margin high volume business model’ (and many of which have little control over the products that they put on promotion, or how long a promotion may run). The point was made that the majority of people in Scotland do not use a convenience store for their weekly shop. Instead, consumers in Scotland use convenience stores to top up their weekly shop, for a one-off meal solution, and for emergency purchases. As a result, the product mix and business focus in convenience stores and supermarkets are quite different, and promotional restrictions could have a greater adverse impact on these kinds of smaller retailers.
• Disadvantaging small food producers in competition with larger businesses: Food manufacturers pointed out that, although they are not in control of when and how retailers promote their products, they are expected to cover the cost of promotional activities. Food manufacturers stated that a substantial proportion of their sales (ranging from 48% to 80%) were driven by products on promotion; therefore, a restriction on promotions would have a significant impact on their profitability. Moreover, this impact was likely to be felt disproportionately among Scottish food producers who rely on promotional activity to help them compete against bigger brands (for whom Scottish sales represent a much smaller proportion of their turnover). It was suggested that the overall effect of promotional restrictions would be to ‘hamstring’ a sector of the Scottish economy which drives growth and employment. Some warned that some smaller producers simply would not survive.
• Placing a further burden on (certain) products / businesses already being targeted by government intervention: Respondents from the soft drinks manufacturing sector pointed out that they had taken significant steps to reduce the sugar content in soft drinks in advance of the Soft Drinks Industry Levy (which came into force in April 2018). This group argued that the outcomes from the Soft Drinks Industry Levy should be assessed first before any further restrictions would put on the sale of their products.
• Increased food waste: Food manufacturers, retailers and out of home providers all pointed to the importance of using price promotions to encourage the purchase of items approaching the end of their shelf-life. These respondents saw the potential for restrictions on promotions to result in a significant increase in food waste.
• Price increases and reduction in choice for consumers: Retail respondents pointed out that many of their customers rely on price promotions to be able to afford certain products. They argued that restrictions would effectively lead to price increases, thus squeezing household budgets, and penalising people on low incomes. Promotional restrictions would also result in consumers having less choice as they would prevent retailers from competing on price.

Other issues raised by food and drink industry respondents

3.24 Respondents across the food and drink industry typically raised several additional points:

• There was a recurring view that there would be ‘complex practical difficulties’ for manufacturers and retailers in having different promotional rules in Scotland compared to the rest of the UK. As noted above, there were particular concerns that Scottish food producers would be seriously disadvantaged by restrictions in Scotland which did not apply to producers selling products elsewhere in the UK.
• There were concerns that the impacts of any promotional restrictions might be felt quite differently by different kinds of retailers. On the one hand, some respondents called for consistency (or a ‘level playing field’) across sectors, and some thought that: (i) within the retail sector, larger companies should not be disproportionately affected compared to small retailers; and (ii) there should be a consistency of approach across the retail and out of home sectors (including all online shopping platforms). However, there was also a contrasting view from a business representative body that the Scottish Government should carefully consider (‘conduct a detailed impact assessment of’) the differing impacts that promotional restrictions would have on different kinds of retailers (i.e. supermarkets vs convenience stores vs small bakeries and cafés).
• There were also differences of opinion about whether any measures taken in this area should be voluntary or mandatory. Among the relatively small number of respondents who raised this issue, food manufacturers tended to request a voluntary approach, while retailers emphasised the need for ‘a level playing field’ and therefore advocated a mandatory approach.

3.25 Respondents opposed to price promotions restrictions generally suggested that the Scottish Government should focus greater efforts on educating consumers to make more informed choices about the food they eat.

Defining food and drinks for promotional restrictions

3.26 The consultation paper noted the importance of clearly defining the types of food that would be targeted for promotional restrictions. Three options were discussed (i) the existing nutrient profiling model (which was developed by the Food Standards Agency, and which is used by Ofcom as the basis for determining which food and drinks will be subject to restrictions on broadcast and non-broadcast advertising targeted at children); (ii) the level of a specific nutrient in food (for example, sugar, or saturated fat); and (iii) foods which contribute the most calories to a diet. Respondents were asked to give their views on this issue.

Question 2: How do we most efficiently and effectively define the types of food and drink that we will target with these measures? Please explain your answer.

3.27 Altogether, 275 respondents (131 organisations and 144 individuals) provided comments. It should be noted that those who offered suggestions in relation to this question were generally those in favour of promotional restrictions (i.e. public health and third sector organisations, private sector weight management organisations, and a relatively large number of individual respondents). These respondents suggested three main methods for defining the types of food and drink that should be targeted for promotional restrictions: (i) the nutrient profiling model (discussed in the consultation paper); (ii) the use of the traffic light labelling system; and (iii) the use of the Eatwell guide. Each of these suggestions is discussed further below.

3.28 Respondents from the food and drink industry and business groups generally reiterated their objections to promotional restrictions. In particular, they highlighted difficulties or disadvantages in relation to the use of the nutrient profiling method. This group of respondents emphasised that, if promotional restrictions were introduced, it would be crucial that the definitions are clear, specific and evidence-based. There were concerns that if the definitions were too complex: (i) smaller businesses would find it difficult to navigate the rules; and (ii) larger businesses might be able to exploit loopholes to avoid the restrictions. These respondents repeatedly highlighted the challenges of the task, and it was noted that the UK Treasury had taken 18 months to define ‘soft drinks’ for the purposes of the soft drinks levy.

Nutrient profiling

3.29 Nutrient profiling was the method discussed most often by respondents as a potential way of defining types of food and drink which should be subject to promotional restrictions. This model uses a scoring system that balances the contribution made by beneficial nutrients with components of food / drink that should be eaten less often. The model applies to all food and non-alcoholic drinks. Respondents pointed out that nutrient profiling models ( NPMs) had been used successfully to identify foods and beverages to be regulated in the marketing of food to children (as discussed in the consultation paper) and they identified the following advantages of using this type of method:

• It is evidence-based, well known and currently being used across the food industry – thus it would provide a consistent message and avoid the need to spend significant time and resources in developing a new model.
• It does not define specific food products as ‘unhealthy’ per se, but rather considers the overall impact products will have on health, reflecting the importance of a balanced diet.

3.30 However, some respondents also thought that: (i) the language used in relation to the profiling model needed to be more accessible / understandable to the general public (it was thought this was currently not the case); and (ii) there was a need for flexibility to prevent restrictions on some products that do not meet the NPM thresholds – it was suggested that discussions with the Food Standards Scotland may highlight examples of these products.

Concerns or perceived disadvantages of the NPM

3.31 By contrast, food and drink manufacturers (and some retailers and out of home providers) expressed a range of concerns about the existing NPM. These respondents commonly said they were not in favour of using the current NPM for the following reasons:

• It was designed for the specific purpose of restricting broadcast and non-broadcast advertising in relation to children, and may not be valid for use in relation to in-store promotional restrictions (which are seen by all ages). It was suggested that its use in other contexts should be tested and evaluated.
• The model is presently under review by Public Health England, and (respondents thought) was likely to change. It was suggested the Scottish Government should delay any decision on this matter until the review is completed.
• The NPM was seen to be complex and difficult to use as it requires information about the levels of ingredients and nutrients, which may not be readily available.
• The model was seen to produce ‘unintended consequences’, and has led to restrictions on advertising of certain ‘nutrient-rich’ foods (examples included milk, lamb and cheese) – which cannot be reformulated as some (so-called) ‘nutrient-poor’ products have been.

3.32 There was also a specific concern raised by respondents from the soft drinks industry. These respondents noted that significant efforts had been made over the past two years to reformulate their products in line with threshold set out under the Soft Drinks Industry Levy (5g of total sugars per 100ml). Nevertheless, it was likely that these products would still be classified as ‘high sugar’ according to the current NPM. These respondents were opposed to promotional restrictions, but argued that if they were introduced, the threshold of 5g total sugar per 100ml should be used to define ‘high-sugar’ drinks under any future NPM.

3.33 Some respondents pointed out that there are different NPMs available, and that these vary in their classification of foods. They suggested that the Scottish Government should consider each of these, and select the model which can be best implemented in relation to restrictions on promotions. Occasionally, respondents highlighted other classification systems (similar to NPMs), including: (i) the NOVA classification which identifies ultra-processed food, and drink products ^[21] ; and a classification system used in Australia, which distinguishes between ‘core’ and ‘non-core’ foods.

Traffic light labelling system

3.34 The second main suggestion made by respondents was that the front of pack ( FoP) traffic light labelling system should be used for defining foods and drinks subject to promotional restrictions. These suggestions generally came from public sector, public health, third sector and individual respondents.

3.35 There were differences of opinion in relation to how this should operate. Some thought that if any one label (for fat, sugar or salt) was red, the product should not be promoted. Others thought that promotional restrictions should apply only when a product has two or more red labels.

3.36 Those in favour of this type of approach thought that traffic light labelling was easy for consumers to understand, and that it would provide a clear and consistent way of comparing food and drinks. However, it was noted that there is no equivalent of the traffic light scheme for children’s foods. The point was also made that this system does not promote healthy foods, only attempts to warn against unhealthy foods. Chapter 6 contains further discussion of respondents’ views on the traffic light labelling system.

Eatwell guide

3.37 The third (less frequent) suggestion was that the Eatwell Guide (2016) (previously the ‘Eatwell plate’ (2006)) could provide the basis for identifying foods which should be subject to promotional restrictions. ^[22] Those offering this suggestion were mainly academic, public sector or third sector organisations, and a small number of individual respondents. This model was reported to be widely used in NHS and educational contexts and therefore was familiar to many members of the public.

3.38 A few respondents specifically stated that the group of high fat, high salt and high sugar foods previously shown in the (2006) ‘Eatwell plate’ could be used as the basis for defining foods for promotional restrictions. ^[23] Others referred to the revised (2016) guide and suggested that the foods not listed (referred to as ‘discretionary foods’) should be consumed seldom and in small amounts and therefore would be suitable for restrictions.

3.39 Respondents who suggested use of the Eatwell Guide thought there was scope to build on the guide, including it on food packaging and introducing colour-coding of shopping aisles within supermarkets linked to the guide.

Views of individual respondents

3.40 Individual respondents were more likely than organisational respondents to offer general comments about the types of food and drink that should be subject to promotional restriction (e.g. ‘foods high in saturated fats, sugar and salt’; ‘processed food’; ‘ready meals’; ‘convenience foods’; ‘anything that is not naturally occurring / with lots of chemicals / with artificial sweeteners’). Individual respondents also often named specific types of food and drink which they thought should be targeted for promotional restrictions (e.g. crisps, chocolate, sweets, etc.).

Foods which should NOT be targeted for restrictions

3.41 A relatively small number of respondents identified foods which they thought should not be included in any promotional restrictions. Examples included foods with a relatively high fat content (e.g. whole milk, cheese, avocados, nuts) as well as some with a high sugar (fructose and starchy carbohydrate) content (e.g. fruit, potatoes, rice). There was a view that these kinds of single-ingredient foods – or ‘real foods’ as some respondents described them – should be exempted from restrictions on promotions.

3.42 There was debate about whether or not infant formula and follow-on formula should be included in the scope of any promotional restrictions. On the one hand, there was a view that such products should not be included as they are already subject to a high level of regulation. However, other respondents (mainly public health organisations) called for the Scottish Government to (i) fully implement the WHO international code on the marketing of breastmilk substitutes – which would help to define the categories of formula / follow-on formula that should be covered ^[24] ; and (ii) focus specifically on the added sugar in formula milk and weaning foods.

3.43 Finally, one industry representative body thought that savoury snacks should not be included in the scope of promotional restrictions as (i) their contribution to dietary intakes of calories, salt and fat is ‘relatively low’ and (ii) ‘they are consumed in small amounts’.

Other points

3.44 There was little comment regarding the proposal (see paragraph 3.26 above) to focus on a specific nutrient. Those who did comment on this issue were opposed, as they thought this would result in ‘demonisation’ of specific nutrients and would not help consumers understand how to eat a balanced diet.

3.45 A range of food and drink manufacturers called for the Scottish Government to take the time to fully assess the impact of a range of diet-related initiatives currently being taken forward by the UK government and Public Health England. These include the ‘sugar reduction programme’ for industry, the Soft Drinks Industry Levy, and recent changes to the CAP code in relation to non-broadcast advertising (discussed in further detail in the next chapter).