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

Introduction

1. Improving diet and levels of healthy weight remains a public health priority for this Government. To help us realise our vision and support people to eat well, we continue to progress the ambitious and wide ranging action set out in our Diet and Healthy Weight Delivery Plan.

2. Our food environment and the options available and promoted to us shape our health. Focusing on transforming the food environment is more likely to help improve diet and weight and be more effective in reducing health inequality than only encouraging individual behaviour change.

3. As a nation we have consistently not met our dietary goals since they were set in 1996. These goals describe, in nutritional terms, the diet that will improve and support the health of the Scottish population. Our diet remains too high in calories, fat, sugar and salt which can have serious consequences for our health. Regular overconsumption of food and drink high in fat or sugar is one of the key factors leading to weight gain and, over time, obesity^[1],^[2].

4. Approximately two out of three adults in Scotland are living with overweight or obesity. In 2022, 72% of adults in the most deprived areas of Scotland were living with overweight or obesity, compared to 61% of adults in the least deprived areas. One third of children were at risk of overweight or obesity in 2022.

5. As part of a wide range of action to improve diet, and help create a food environment which better supports healthier choices, we remain committed to restricting promotions of food and drink high in fat, sugar or salt (HFSS) at the point of purchase. This is when people make their decisions about what and how much to buy and to consume, for themselves as well as for their families.

6. The primary aim of the policy is to reduce the public health harms associated with the excess consumption of calories, fat, sugar and salt, including the risks of developing type 2 diabetes, various types of cancer and other conditions such as cardiovascular disease. We are also aware of the need to reduce diet-related health inequalities, including in relation to socioeconomic disadvantage, and for the policy to support our aim to halve childhood obesity by 2030.

7. Restricting the promotion of less healthy food and drink is intended to make it easier for people to spend less on HFSS products and make healthier choices, in line with our public health priority to create a Scotland where everyone eats well and has a healthy weight.

Previous consultations

8. In 2018/19, following a commitment in our Delivery Plan, we publicly consulted on proposals to restrict the promotion and marketing of targeted food and drink ('food') high in fat, sugar or salt (HFSS) where they are sold to the public. The consultation ran from 2 October 2018 to 9 January 2019. An analysis of the consultation was published in September 2019. A previous consultation in 2017/18 included questions on restricting promotions. An analysis of this was published in April 2018.

9. We consulted again in 2022 to inform further development and impact assessment of the policy. The 2022 consultation provided an opportunity to take account of developments since the 2018/19 consultation, including EU exit, COVID, cost of living pressures and the introduction of equivalent promotions regulations in England. An analysis of the consultation was published in May 2023.

10. In summary, feedback from the 2022 consultation found:

• Non-industryrespondents were generally supportive of restrictions but less supportive of some exemptions (for example for small businesses).
• Views from businesses and other industry stakeholders were mixed. Where there was support, it generally related to a preference for alignment with the UK Government's promotions restrictions in England. Disagreement typically related to the view that there is insufficient evidence to justify aspects of the policy, such as targeting temporary price reductions, or that it would create disadvantages for certain types of businesses (particularly smaller businesses).
• Individuals'views were relatively mixed. Views in support of the policy tended to be similar to those expressed by non-industry respondents. Those against the proposals tended to disagree with the need for restrictions at all or had concerns about how restrictions may affect the public financially.

Wider context

11. The policy was previously proposed to be delivered as a Bill. Following our 2022 consultation and the further development of policy proposals, we determined that this policy can be delivered more efficiently by regulations.

12. The UK Government has put in place regulations in England to restrict the promotion of targeted HFSS foods by location and volume price - The Food (Promotion and Placement) (England) Regulations 2021 (SI 2021/1368). Location restrictions (for example, displaying foods at checkouts and end of aisle) came into force on 1 October 2022. The UK Government delayed the implementation of volume price restrictions, such as buy one get one free, citing rising cost of living pressures. Volume price restrictions were expected to come into force in England in October 2023, but UKG have delayed implementation by a further two years, until 1 October 2025.

13. In summer 2022, the Welsh Government consulted on similar proposals to restrict less healthy promotions in its Healthy Food Environment consultation. The promotions proposals included restricting value-based promotions, including multi-buy, temporary price reductions and meal deals, and location restrictions, including at free standing display units, checkouts and end of aisles, on less healthy foods. The Welsh Government have since confirmed that they intend to consider consistency with UK Government regulations, though are also minded to include temporary price promotions and meal deals within scope of their policy.

14. The Good Food Nation Bill has been passed through the Scottish Parliament and became an Act in July 2022. It is the foundation upon which Scotland will build a Good Food Nation. The Act provides a framework for clear, consistent and coherent future Scottish food policy and supports cross Government action we are already undertaking to deliver our Good Food Nation ambition by ensuring that people are supported to make healthier choices.

15. A group has been established to take forward recommendations as part of a New Deal for Business, to strengthen co-operation between the Scottish Government and businesses. Engaging with businesses from an early stage of policy development is key to ensure policy is effective and proportionate.

16. At both national and local level, the Scottish Government is taking wide ranging action to improve diet and support people to be a healthy weight. This includes, among other things, nutritional standards to support healthier food provision in schools, free school meals, information, advice and support for families through Parent Club and Best Start Foods, and improving availability of healthier food in local communities through the Scottish Grocers Federation Healthy Living Programme.

This consultation

17. This consultation seeks views on the detail of proposed regulations to restrict the promotion of HFSS foods where they are sold to the public, including across retail and out of home settings. As set out previously, the policy will target HFSS foods including, among other things, confectionery, cakes, crisps, savoury snacks and soft drinks with added sugar. It is proposed the policy will target promotion types including among other things, multi-buys, temporary price reductions, meal deals and positioning restrictions, such as at checkouts and front of store.

18. We intend to make Regulations under powers in the Food Safety Act 1990 ("the 1990 Act") and the Food (Scotland) Act 2015 ("the 2015 Act"). The 1990 Act provides the Scottish Ministers with powers to make Regulations which impose requirements or prohibitions on the labelling, marking, presenting or advertising of food and the descriptions applied to food, and Regulations which prohibit or regulate commercial operations in relation to food in the interests of public health. These powers would allow Scottish Ministers to introduce requirements and restrictions on the promotion of HFSS foods. The 1990 Act and the 2015 Act together enable the Scottish Ministers to set down offences and make provision regarding the enforcement of the Regulations, including the use of administrative sanctions such as compliance notices and fixed penalty notices under the 2015 Act. This consultation is being carried out in accordance with Article 9 of the General Food Law Regulation (Regulation (EC) No 178/2002), which applies to the proposed Regulations.

19. Our consultation proposals have been informed by the feedback to our 2022 consultation and subsequent engagement with stakeholders, including from roundtables held in November and December 2023. Collectively this feedback has helped to refine our proposals and identify areas for further consideration and consultation.

20. In this consultation, we are seeking views on the detail of proposed regulations to restrict HFSS promotions including:

• targeted foods within the scope of restrictions;
• price promotions within the scope of restrictions, including meal deals and temporary price reductions;
• the approach to placement restrictions of targeted foods in store and online;
• the qualifying businesses within the scope of restrictions, including proposed exemptions;
• the proposed approach to enforcement and implementation.

21. A partial BRIA has been prepared and accompanies the consultation document. We are encouraging businesses to provide any data and relevant information to assist with further developing the final BRIA. The partial BRIA is available here. Submissions can be made directly to DietPolicy@gov.scot.

22. Information on the Scottish Government consultation process and how to respond to the consultation is set out in Annex A.

23. Key publications which have informed the development of this policy are at Annex B.

24. A glossary of terms is at Annex C.