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

Section 3. Location Restrictions

90. In our 2022 consultation, we proposed to restrict the location of targeted foods in prominent places in physical premises where they are sold to the public. This would include the following locations:

• checkout areas, including self-service;
• end of aisle;
• front of store, including store entrances and covered outside areas connected to the main shopping area; and
• island/bin displays.

91. We also proposed that these restrictions would apply to the equivalent locations online. These included home pages, certain searching or browsing pages, "pop-up" pages, favourites pages and shopping basket or checkout pages.

92. As set out in our 2022 consultation, how and where foods are promoted and marketed influences our purchasing decisions and drives sales of targeted foods. There is consistent and extensive evidence from a range of studies that non-price promotions (positional or placement or location promotions) influence consumer choice of food (to either purchase healthy or unhealthy products) in both retail and out of home settings.^[22] For example, an observational study in England, which controlled for price, evidenced that end of aisle display significantly increased purchase of carbonated soft drinks. A 2018 survey by the Obesity Health Alliance showed that 43% of all food and drink products located in prominent areas, such as store entrances, checkouts, and aisle ends were for sugary foods and drinks.

93. By contributing to a reduction in the purchase of HFSS foods, restricting non-price promotions therefore presents an opportunity to support reductions in the purchase and consumption of calories, fats, sugar and salt and progress towards achieving our Dietary Goals.

94. In feedback to our 2022 consultation, non-industry organisation respondents typically agreed with location restrictions proposed in the 2022 consultation (set out at paragraph 90 above) on the basis that they believe that promotions in certain locations encourage customers to purchase HFSS goods that they did not intend to buy. Individuals also tended more towards agreement than disagreement.

95. Responses from industry organisations were more mixed. There was some concern about a disproportionate impact on small stores. However, there was general support that if restrictions are introduced these should align with restrictions in England. A majority of industry respondents indicated restrictions should not include 'island/bin displays'. There were a number of other specific concerns expressed in respect of restricting island/bin displays, such as their specific use for meeting high demand for seasonal products and for displaying clearance products.

96. A more detailed breakdown of the feedback on in-store location restrictions is available in section 5 of the independent analysis report of the consultation, published in May 2023.

Proposals

In-store

97. Having considered the feedback to our previous consultation, alongside the evidence base, we propose to restrict the location of targeted foods in prominent places in physical premises where they are sold to the public.

98. Targeted foods could not be placed in store at:

Checkout areas - meaning:

i. any area within 2 metres of the checkout facility, which is the facility intended to be used by consumers to make a purchase, including a self-checkout terminal and a counter at which a cash register is used. Targeted HFSS foods would be able to be placed in an aisle (but not at the end of an aisle^[23]) even if it is within 2 metres of a checkout.

ii. any area within 2 metres of a designated queuing area or queue management system^[24]. Targeted HFSS foods would be able to be placed in an aisle (but not at the end of an aisle) even if it is within 2 metres of a checkout.

End of aisles - meaning a display at the end of (but not within) an aisle, where the aisle end is adjacent to a main customer route through the store. Includes displays on a separate structure, such as an island bin, pallet, free standing unit, side stack or clip strip connected or adjacent to, or within 50cm of, such an aisle end.

Store entrances – meaning any point within the prohibited distance^[25] of the midpoint of any public entrance to the store's main shopping area.

Covered external area – meaning a covered area outside and connected to a store's main shopping area, through which the public passes to enter the main shopping area (such as a foyer, lobby or vestibule).

Free standing displays – meaning free standing displays of products away from other products to increase their visibility. Display locations can include the middle of an aisle, along main customer routes through store, and other highly noticeable places. This would include displays using free standing structures such as pallets, fridges, freezers, island bins, aisle units and gondolas.

99. The location restrictions would apply to pre-packed targeted foods. Promotions of non-pre-packed soft drinks with added sugar in respect of unlimited refills for a fixed charge would also be within scope of location restrictions.

Other considerations

100. We recognise that there may be specific considerations in terms of the implementation of store entrance restrictions for stores that offer predominantly non-food products alongside a smaller food offer in a dedicated area of the main store e.g. a department store with a small food hall or café area within the main store.

101. Location restrictions, as described at paragraph 98, would apply to these dedicated areas as they would to the rest of the store. However, we propose that implementation of store entrance restrictions for these areas should be based on the relevant floor area within store that is dedicated to the sale of food products where:

• the store has specific till points within the floor area dedicated to food products; and
• there is a separate external entrance and/ or internal entrance(s) to the area dedicated to food products.

102. To be clear, location restrictions, including in relation to store entrances, as described at paragraph 98, would apply in the rest of the store. This would cover for example, the placement of targeted foods at a non-food checkout or on display at the entrance to the main store. The specific consideration discussed here only applies to the specific areas in stores designated for the sale of food.

Relevant floor area

103. When calculating the size of a store based on floor space, we recognise that there are areas within store that are not customer facing or relevant to the sale of targeted foods to the public, for example a store room or office.

104. Taking this into account, we propose that the relevant floor area of a store, in relation to these regulations, would be the internal floor area of a store, excluding any part of the store that:

• is not used for displaying or in connection with serving consumers products for example storage areas. Areas behind the counters would not be excluded from relevant floor area.
• is used for consultation with customers in connection with any medical services (such as a pharmacy or opticians' services) offered in the store.
• is intended as a seating area in areas where the food displayed is intended for immediate consumption, such as cafes.
• an area occupied by a separate business other than the store it is in (a concession), but only where the concession operates its own payment facilities.

UK Government and Wales

105. With the exception of targeting free standing displays, our proposed approach is consistent with the equivalent regulations for England. We therefore propose consistency with the definitions set out in the UK Government regulations (unless we've indicated otherwise in this consultation) and where this supports delivery of the policy in Scotland.

106. In addition to store entrances, checkouts and end of aisle, the Welsh Government is also minded to target free standing display units (in addition to those associated with the end of an aisle). We will continue to explore with the Welsh Government the scope for consistency with definitions where this supports delivery of the policy in Scotland, recognising that this would help to reduce regulatory burden for businesses.

Questions

Question 10 - Are the proposed descriptions of the following prominent in-store locations, as described at paragraph 98, sufficiently clear for implementation and enforcement?:

a. Checkout – Yes/ No/ Don't know

b. End of aisle – Yes/ No/ Don't know

c. Store entrances – Yes/ No/ Don't know

d. Covered external area – Yes/ No/ Don't know

e. Free standing displays – Yes/ No/ Don't know

Please explain your answers.

Question 11 - Do you agree with the proposed approach to applying store entrance criteria to dedicated food areas within stores, as described at paragraphs 100-102?

Yes/ No/ Don't know

Please explain your answer.

Question 12 - Do you agree with the proposed description for relevant floor area?

Yes/ No/ Don't know

Please explain your answer.

Question 13 - Please provide any additional comments on the proposals for in-store locations within scope of the policy.

Comment

Online

107. We proposed in our 2022 consultation that as more people purchase food online ^[26], a trend that accelerated due to the COVID-19 pandemic^[27], these restrictions should apply to equivalent locations online, for example to home and checkout pages. Food Standards Scotland analysis of 2019 to 2022 data^[28] suggests 8% of retail food and drink volume in 2022 was purchased online.

108. In feedback to our 2022 consultation proposals, non-industry respondents tended to support online location restrictions on the basis that these encourage unintended purchases of HFSS items. Individuals shared a similar view. There was a level of support for restricting the online locations among industry respondents on the basis that they supported alignment with restrictions in England.

109. A more detailed breakdown of the feedback on applying location restrictions to equivalent locations online is available in section 5 of the independent analysis report of the consultation, published in May 2023.

110. Taking this feedback into account, we propose that restrictions on the placement of targeted HFSS foods would apply to equivalent locations online as follows:

• on a home page, whether or not the consumer enters the online marketplace via the home page. "Home page" means any of: (i) an online marketplace's highest level public page; (ii) the highest level public page of an online marketplace's grocery section.
• whilst a consumer is searching for or browsing products

i. other than targeted foods

ii. in targeted food categories unless:

• a consumer browses or searches for a general category of product which includes the targeted food e.g. seasonality or nutritional or dietary characteristics.
• a search term entered by the consumer matches in whole or in part the name under which the targeted food is marketed or an ingredient listed on the packaging of the targeted food.
• on a favourite products page unless the consumer has previously purchased the targeted food (whether in store or online) or intentionally identified it as a favourite product. "Favourite products page" means a page opened by a consumer for the purpose of browsing products they have previously purchased or intentionally identified as favourite products.
• on pages not opened intentionally by the consumer (such as "pop-ups" or a "brand burst").
• on a checkout page, meaning a page shown to a consumer as part of the checkout process, such as a page listing items the consumer has so far selected for purchase or a page dealing with payment, collection or delivery.

111. Our proposed approach to online locations is consistent with the equivalent regulations for England and proposals set out by the Welsh Government. We therefore propose consistency with the definitions set out in the UK Government regulations where appropriate and this supports delivery of the policy in Scotland.

Questions

Question 14 - Are the proposed descriptions of the following online equivalent in-store locations sufficiently clear for implementation and enforcement?

a. Home page - Yes/ No/ Don't know

b. Favourites page - Yes/ No/ Don't know

c. Pages not opened intentionally by the consumer - Yes/ No/ Don't know

d. Checkout pages - Yes/ No/ Don't know

Please explain your answers

Question 15 - Are there any other equivalent online locations that should be within scope of the policy?

Yes/ No/ Don't know

Please explain your answer

Question 16 - Please provide any additional comments on the proposals for online locations within scope of the policy.

Comment