Reducing health harms of foods high in fat, sugar, or salt: consultation analysis

7. Exemptions to restrictions (Qs 9-11)

7.1. The consultation paper discussed possible exemptions from positioning restrictions and other exemptions. Respondents were asked if they felt (i) positioning restrictions (e.g. in relation to display at end of aisle, checkouts etc.) should be exempted where there is no reasonable alternative to displaying foods elsewhere, (ii) food marked as discounted because it is close to expiry should be exempt from positioning and promotion of value restrictions, and (iii) other exemptions to restrictions should be considered.

Positioning restrictions   

7.2. The consultation paper noted that the restrictions would apply to many different outlets of various sizes and layouts, selling a wide range of products. It was noted this could affect the ability of some to comply with positioning restrictions. It noted that in certain cases the display of foods in particular locations may reflect the realities of the physical size or layout of the premises or the limited product range (such as sweets being sold in a confectionary store). The paper also highlighted that consideration may need to be given, for example, to the ‘grab and go’ areas of larger stores which due to their position and layout may mean they need to be treated as a small retail environment. Respondents were asked if they felt that an exemption should be permitted to the positioning of targeted foods in some circumstances.

Question 9: Should restrictions to displaying targeted foods at end of aisle, checkouts etc., not apply where there is no reasonable alternative to displaying them elsewhere?

Overview

7.3. Over two-fifths of organisation respondents (45%) agreed with the suggestion to not apply positioning restrictions where there is no reasonable alternative to displaying them elsewhere. Under a third (30%) disagreed with this exemption and nearly a fifth (19%) did not select a tick box answer. 

7.4. Meanwhile two-fifths (40%) of individual respondents agreed with the exemption and a third (34%) disagreed. Compared with other questions, a relatively high proportion of individuals gave a ‘don’t know’ response (14%).

7.5. It should also be noted that 4% of individual respondents gave a conflicting answer ‘no’ – i.e. their written explanation did not match the answer option selected (they indicated they were against restrictions) – and a further 3% gave a possible conflicting answer ‘no’ – i.e. their response to not allow this exemption and thereby apply the restrictions, was not in-keeping with their other responses to the survey (which were against restrictions). It is therefore likely that the level of ‘yes’ responses reported above highlighting agreement with not applying restrictions in these circumstances is an underestimate. 

7.6. This issue also arose but to a lesser extent in relation to ‘yes’ responses: 2% (all individuals) gave a conflicting answer ‘yes’ – i.e. their written explanation did not match the answer option selected. It is therefore likely that the level of ‘no’ responses reported above to not allow an exemption in these circumstances is a slight underestimate. The breakdown of responses is provided in Table 7.1.

Table 7.1 Responses to question 9

Answer	Organisations		Individuals
	n	%	n	%
Yes	42	45%	251	40%
No	28	30%	210	34%
Don’t know	6	6%	89	14%
Not answered	18	19%	25	4%
Conflicting/possible conflicting answers[42]	0	0%	57	7%
Total	94	100%	632	100%

Organisation respondents overview

7.7. Breaking down the findings further from the responses in the table above, it was possible to see different views in the responses from different types of organisation. Two-fifths (40%) of the non-industry organisation respondents disagreed with the exemption – which was a little higher than the proportion that agreed (36%). Close to three fifths (56%) of the industry organisation respondents agreed with the exemption although just over a quarter (26%) did not provide a tick box answer. A full breakdown is provided in Annex 2, Table A2.9.

Agreement with the ‘no reasonable alternative’ exemption

7.8. Close to half of those that indicated that they agreed with the exemption believed that no restrictions to promotion and marketing should be implemented. This was expressed predominantly by individual respondents but also by few manufacturer and industry representative body respondents.

7.9. The rest (reflecting all types of respondents) indicated agreement with the specific exemption, and their reasons centered on acknowledgement of the rationale in the consultation paper and that this was a reasonable approach. Many noted that this was appropriate for small shops and few noted that this was appropriate for certain shops such as those that only sell discretionary foods. Few respondents (public sector and other organisations) cautioned that a clear definition of ‘no reasonable alternative’ and clear guidelines would be needed to ensure only genuine exemptions were made and to prevent the exemption creating a loophole which may be abused.

7.10. Some retailer respondents emphasised the need to take into account the practicalities of store operations. Few felt that grab-and-go areas should be considered a small retail environment. They also reported that it would be difficult to apply restrictions in relation to aisles as it was often difficult to define what constitutes an aisle. Few retailer respondents cautioned that the restrictions might be difficult to implement even in large stores. One retailer respondent suggested fixed ‘blackout’ periods during peak seasonal times such as Christmas where it would be more difficult to comply with the requirements.

7.11. Few manufacturer respondents noted that a lack of exemption for small stores would mean they were compelled to stop stocking the products, resulting in a disproportionate restriction on their business operations and a restriction on consumer choice.

7.12. One industry representative body respondent suggested that retailers were particularly concerned about restrictions at the checkout that would be particularly disruptive for small retailers who could have to overhaul the whole store to comply. They were also concerned that larger convenience stores, if not exempted, may have to reduce the services they offer to communities because of the need to reorganise space to accommodate discretionary products. This was of particular relevance given proposals to introduce a deposit return scheme and the requirement for a reverse vending machine. This was of particular concern in relation to isolated or deprived areas where convenience stores may offer key community links. 

Disagreement with the ‘no reasonable alternative’ exemption

7.13. Most commonly (noted by some) disagreement was due to the belief that the exemption would create a loophole, which could be abused, for example, by stores purposely implementing layouts that would meet the criteria for the exemption. It was thought that this would undermine the policy and ultimately make it hard to implement and enforce. This view was held by some public and third sector respondents as well as some individual respondents. One individual respondent suggested that the volume of small stores was considerable and that this would make the policy ineffective if all were exempt. 

7.14. Few retailer respondents felt that the restrictions should be applied equally to avoid distorting the market. 

7.15. Few public sector and other organisation respondents specifically noted that grab-and-go sections should be included in restrictions as otherwise this would offer a loophole for larger retailers.

7.16. Other reasons for disagreement with the exemption expressed by few respondents included:

• Individual respondents felt there is always an alternative that can be used; 
• One third sector respondent suggested discretionary foods should be displayed ‘higher up’ – out of view and reach of children;
• Belief that the rules need to be consistent across all businesses and that an exemption reduces consistency (expressed by individual respondents, and public sector, retailer and industry representative body respondents);
• Individual respondents suggested that instead of allowing an exemption, shops should adapt to ensure they comply, for example: find bigger premises; be creative in how they use shelf space; reduce stock of discretionary items; and
• Belief that if an alternative cannot be found, discretionary foods should not be sold (expressed by individuals and one public sector organisation).

Expiry restrictions   

7.17. The consultation paper proposed not to apply place or promotion of value restrictions to food marked as discounted because it is close to expiry. Respondents were asked if they felt these circumstances warrant an exemption. 

Question 10: Should food marked as discounted because it is close to expiry be exempt from: 
positioning restrictions (end of aisle, checkouts etc.); 
‘promotion of value’ restrictions?

Overview

Exemption for positioning restrictions

7.18. Less than two-fifths of organisation respondents agreed with the proposal to exempt food marked as discounted because it is close to expiry from positioning restrictions (37%). Less than a third (31%) disagreed. Notably though, a similar proportion of organisation respondents did not select a tick box answer (29%). Nearly half of individual respondents agreed with the proposal to exempt food marked as discounted because it is close to expiry from positioning restrictions (49%).  A third disagreed (33%). 

7.19. It should also be noted that 5% of individual respondents gave a conflicting answer ‘no’ – i.e. their written explanation did not match the answer option selected (they indicated they were against restrictions) – and a further 2% gave a possible conflicting answer ‘no’ – i.e. they gave no explanation to this question but their response to not allow this exemption and thereby apply the restrictions, was not in-keeping with their other responses to the survey (which were against restrictions). It is therefore likely that the level of ‘yes’ responses reported above (for individuals) in agreement with the exemption is an underestimate. 

7.20. This issue also arose but to a lesser extent in relation to ‘yes’ responses.
A very small number (1%) gave a conflicting answer ‘yes’ – i.e. their written explanation did not match the answer option selected. It is therefore likely that the level of ‘no’ responses reported above, to not allow an exemption in this circumstance, is a slight underestimate. The results are displayed in Table 7.2.

Table 7.2 Responses to question 10 - positioning restrictions

Answer	Organisations		Individuals
	n	%	n	%
Yes	35	37%	312	49%
No	29	31%	212	33%
Don’t know	3	3%	33	5%
Not answered	27	29%	27	4%
Conflicting/possible conflicting answers[43]	0	0%	48	8%
Total	94	100%	632	100%

Organisation respondents overview

7.21. Breaking down the findings further from the responses in the table above, it was possible to see different views in the responses from different types of organisation. More than two-fifths (42%) of the non-industry organisation respondents disagreed with the exemption to positioning restrictions, i.e. thought the restrictions should still apply for food close to expiry. More than a third (36%) agreed with the exemption. Close to two-fifths (38%) of the industry organisation respondents agreed with the exemption, although more – close to half (46%) did not provide a tick box answer. A full breakdown by organisation is provided in Annex 2, Table A2.10.

Exemption for ‘promotion of value’ restrictions

7.22. Less than two-fifths of organisation respondents agreed with the proposal to exempt food marked as discounted because it is close to expiry from ‘promotion of value’ restrictions (39%). Over a quarter (28%) disagreed. Notably though, a similar proportion of organisation respondents did not select a tick box answer (30%). Close to half of individual respondents agreed with the proposal to exempt food marked as discounted because it is close to expiry from ‘promotion of value’ restrictions (45%).  Close to a third disagreed (32%). A tenth (10%) gave a ‘don’t know’ response.

7.23. It should also be noted that 5% of individual respondents gave a conflicting answer ‘no’ – i.e. their written explanation did not match the answer option selected (they indicated they were against restrictions) – and a further 2% gave a possible conflicting answer ‘no’ – i.e. they gave no explanation to this question but their response to not allow this exemption and thereby apply the restrictions, was not in-keeping with their other responses to the survey (which were against restrictions). It is therefore likely that the level of ‘yes’ responses reported above (for individuals) in agreement with the exemption is an underestimate. 

7.24. This issue also arose but to a lesser extent in relation to ‘yes’ responses.
A very small number (1%) gave a conflicting answer ‘yes’ – i.e. their written explanation did not match the answer option selected. It is therefore likely that the level of ‘no’ responses reported above, to not allow an exemption in this circumstance, is a slight underestimate. The results are displayed in Table 7.3.

Table 7.3 Responses to question 10 – ‘promotion of value’ restrictions

Answer	Organisations		Individuals
	n	%	n	%
Yes	37	39%	287	45%
No	26	28%	201	32%
Don’t know	3	3%	65	10%
Not answered	28	30%	33	5%
Conflicting/possible conflicting answers[44]	0	0%	46	8%
Total	94	100%	632	100%

Organisation respondents overview

7.25. Breaking down the findings further from the responses in the table above, it was possible to see different views in the responses from different types of organisation. Two fifths (40%) of the non-industry organisation respondents agreed with the exemption for ‘promotion of value’, while more than a third (36%) disagreed, i.e. thought the restrictions should still apply. Close to two-fifths (38%) of the industry organisation respondents agreed with the exemption, although more – close to half (46%) did not provide a tick box answer. A full breakdown by organisation is provided in Annex 2, Table A2.11.

Agreement with the ‘discounted because it is close to expiry’ exemptions

7.26. Some of the individual respondents that agreed with the exemptions did so on the basis that they do not believe mandatory measures should be introduced and therefore that no restrictions should apply. 

7.27. However, many of the individual respondents and most of the organisation respondents (across all types) that agreed, indicated agreement with the rationale in the consultation paper that this was necessary to prevent food waste and should therefore override the restriction of promotion and marketing of HFSS foods. Some retailer respondents mentioned specific policies, guidance or schemes that they were signed up to or following, such as the Coultard commitment to reduce food and drink wastage, guidance from Zero Waste Scotland, or FareShare. If restrictions on close to expiry food were put in place, these retailers felt such restrictions would undermine efforts based on those schemes and create contradictory policy. 

7.28. One industry representative body respondent highlighted the relevance of the exemption for short shelf-life products such as chilled desserts.

7.29. Few respondents (individuals and various types of organisations) also agreed with the exemptions on the basis that these offers are needed by those on a low income or low budget. 

7.30. Few respondents (individuals) felt that the exemption should apply to prevent losses to businesses from not being able to clear old stock. 

7.31. Few respondents highlighted the need to define ‘close to expiry’ (expressed by individuals and one third sector respondent) and to monitor and review usage of the exemption (few public sector respondents).

Disagreement with the ‘discounted because it is close to expiry’ exemptions

7.32. Among those that disagreed with allowing an exemption in these circumstances, the most frequent reason (expressed by individual respondents and few public sector and third sector respondents) was concern that the exemption may be abused – for example, by expiry dates being purposely shortened to side step restrictions on other types of offers. Few public sector respondents flagged that there may need to be distinction between ‘short life’ products and longer life products. One other organisation respondent highlighted that retailers specialising in selling food nearer to expiry date would have an unfair advantage.

7.33. Few of the respondents that disagreed (few individuals and few other organisations) raised concern that the foods contain the same levels of fat, sugar and salt regardless of how close they are to expiry and therefore should still be subject to the same restrictions to prevent harm to health. It was also flagged by few respondents (individuals and few public sector respondents) that those on a low income are most likely to take advantage of these offers and therefore to exempt them would continue the probability of those on a low income being persuaded to buy them and therefore having the poorest diet. 

7.34. Few respondents (individuals, one manufacturer and one public sector respondent) thought that there should be no exemptions as this reduces consistency and acts to undermine what the policy has set out to achieve. 

7.35. Few respondents (individuals, few public sector and other organisation respondents) felt that an exemption was not needed since retailers could simply manage their stock better and buy less of these types of food to avoid ending up with unsold stock. 

7.36. Few individual respondents noted that it was already clear when food is on offer due to being close to expiry through the yellow sticker system used by some stores and that these foods could be sold from a specific place in the store (away from end of aisle and checkouts) as is already often the case. 

Other exemptions   

7.37. Respondents were asked to comment on any other exemptions they felt should be considered. 

Question 11: Please list any other exemptions we should consider.

Overview

7.38. Overall 95 respondents gave a specific response to the question (i.e. excluding blanks, ‘no comment’, ‘don’t know’ and general ‘no restrictions’ answers). Of these, 63 were individuals and 32 were organisations^[45] (of which 17 were industry organisations and 15 were non-industry organisations).

No exemptions view

7.39. Few respondents (individuals and few public sector and third sector respondents) emphasised their belief that no exemptions should be allowed. The reasons echoed those already raised in response to question 10 – i.e. that the foods remain unhealthy and exemptions provide potential loopholes, which may be abused, undermining the effectiveness of the policy. 

7.40. One retailer and one industry representative body respondent also flagged that a preferable approach may be to introduce fewer restrictions that do not require exemptions, rather than introduce lots of restrictions requiring exemptions which creates a somewhat complex picture for implementation, compliance and enforcement.

Potential exemptions

7.41. Other exemptions were put forward for consideration but each by few respondents. Most commonly:

• Small businesses – individuals and organisation respondents flagged that small businesses would need exemption from the requirements as they may be disproportionately affected, both in terms of positioning restrictions but also in terms of being able to compete with larger businesses by offering promotions. One industry representative body respondent suggested exemptions for the very smallest (e.g. under 2000 sq. ft.) from end of aisle and checkout display restrictions, on the basis that this would be in keeping with environmental and waste regulations, where the smallest businesses are exempted; another suggested shops smaller than 280 sq. m. should be exempt from positioning restrictions;
• Seasonal stock – all types of respondents noted that items sold for specific events/holidays being sold at the appropriate time of the year should be exempt as shops need to be able to position extra stock accordingly to meet increased demand. At these times of year, it was thought these products were sought out and may be gifts as well as for personal consumption. Most commonly Easter and Christmas was mentioned, but products for Birthdays and other events such as Halloween and Valentine’s Day were also flagged as times when an exemption to restrictions would be appropriate;
• Items for special dietary needs (such as gluten free, vegan etc.) were flagged by individual respondents as requiring exemption;
• Local products – individuals and manufacturer respondents felt that locally made Scottish products should be exempt, to encourage and support Scottish heritage;
• Items with medical benefits i.e. used to control diabetes and epilepsy were highlighted by individual respondents for exemption; and
• Specialist shops were also flagged by individual respondents (and concern about the potential impacts on specialist shops was also raised by few industry organisation respondents in relation to other questions).

7.42. Generally, the respondents did not make clear which restrictions the exemptions listed should apply to – i.e. whether from all restrictions or only e.g. positioning restrictions or promotional offers.

7.43. Few industry organisation respondents highlighted a number of issues in relation to existing initiatives/requirements that they felt should be considered and would require exemption from the restrictions so that they are not undermined. These issues are:

• One manufacturer respondent noted that infant and toddler foods are governed by extensive European legislation in regards to composition and safety and have been designed to meet their specific and evolving nutritional requirements. It was therefore felt that these should be exempt;
• Two manufacturer respondents and one industry representative body respondent noted soft drinks under 5g sugar per 100ml (in line with soft drink industry levy threshold) should be excluded from any restrictions for consistency with guidance, and to allow lower sugar alternatives to be promoted so customers can choose lower sugar versions of products they already consume. They felt it would also encourage manufacturers to innovate and create alternative options;
• As well as more general concerns about banning promotions for specific categories in relation to stifling innovation and competition, three industry representative body respondents and two manufacturer respondents expressed concerns that promotional restrictions on reformulated items would undermine the work undertake by companies to voluntarily reduce fat, sugar and salt levels. They therefore thought exemptions for nutrient or portion size reduced products should apply; and
• One manufacturer respondent noted the ‘Designated Driver’ promotion of soft drink alternatives during the Christmas period would be at risk if this could not be promoted.