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

Section 5: Exemptions from location restrictions

131. As set out in our 2022 consultation, we recognise that the food business landscape is incredibly diverse, comprising outlets of various sizes and layouts, selling a range of products. Consequently, the extent to which businesses may be able to comply will location restrictions will also vary.

132. Therefore, in considering whether there should be any exemptions, we continue to be guided by the following key principles:

• Implementable: can the exemption be implemented in a proportionate way?
• Meaningful: the exemption does not undermine the overall aims and benefits of the policy.

133. In feedback to our 2022 consultation proposals on exemptions from location restrictions, overall respondents supported exemptions for specialist businesses that only or mainly sell one type of food product category (such as chocolatiers and sweet shops) from location restrictions. Primarily this was on the basis that it would not be practical for these businesses to avoid displaying HFSS goods in the locations proposed for restrictions. It was also noted that the exemption would align with restrictions in England.

134. Industry respondents tended to support exemptions for businesses from location restrictions on the basis of number of employees and/or floor space due to a preference for alignment with England or a view that it would not be practical for smaller businesses to comply. The cost associated with reconfiguring store layouts was also noted. Non-industry respondents tended to disagree with proposals to extend exemptions from location restrictions beyond specialist businesses, primarily due to concerns that doing so would reduce the overall impact of the restrictions. Individual views were mixed.

135. A more detailed breakdown of the feedback is available in section 7 of the independent analysis report of the consultation, published in May 2023.

136. Further engagement through a series of recent roundtable discussions with key stakeholders reinforced the feedback to our consultation. Public health stakeholders reiterated the view that there should be as few exemptions as possible so as to maximise the public health benefits of the policy, including consideration of health inequalities. Industry stakeholders were generally supportive of exemptions, citing practicalities of compliance as a key consideration and alignment with the regulations for England.

137. Taking into account the feedback received, we propose the following exemptions for qualifying businesses, as defined at paragraph 116, from locations restrictions:

• Business type - Specialist businesses with a limited product range, such as chocolatiers and sweet shops, will be exempt from location restrictions.
• Store size - Stores with a relevant floor area of less than 185.8 square metres (2,000 square feet) would not be within the scope of the location restrictions. Relevant floor area is discussed in more detail, including a proposed definition, at paragraph 103-104.

138. The proposed approach recognises that specialist businesses with a limited product range would have very limited or no scope to comply with location restrictions due to the very nature of the product being sold.

139. This approach also reflects the fact that smaller sized stores in general may have limited or no scope to comply with location restrictions for example, a small convenience shop or kiosk. Stores that are 185.8 square metres (2,000 square feet) or greater are typically expected to have distinct checkout and front-of-store areas and have multiple aisles and aisle ends and therefore have scope to comply with location restrictions.

140. We do not propose exemptions from location restrictions for products close to expiry on the basis that there remains sufficient scope throughout the supply chain to allow businesses to take action to reduce food waste.

141. Should we proceed with the proposed exemptions subject to the outcome of the consultation, we will continue to encourage businesses that are not subject to price and location restrictions to consider how they can support consumers to make healthier choices. There is a range of support and advice available, including the Scottish Grocers Federation Healthy Living Programme and Reformulation for Health programme.

UK Government regulations for England

142. The UK Government has set out in its regulations exemptions for certain businesses within scope of location restrictions. In summary, these are as follows:

• Micro and small businesses (fewer than 50 employees) are exempt from location restrictions;
• Premises smaller than 185.8 square metres (2,000 square feet) (even if they are part of a medium or large business with 50+ employees) are exempt from location restrictions; and
• Specialist retailers that sell one type of food product category (e.g. chocolatiers or sweet shops) are exempt from location restrictions.

143. Further information on the definitions for these exemptions is set out in the UK Government regulations, explanatory memorandum, and implementation guidance.

Welsh Government

144. The Welsh Government proposed in their consultation paper to follow the approach to exemptions taken in UK Government regulations and outlined above.

Questions

Question 22 - Are the proposed exemptions from location restrictions based on business type clear and sufficiently defined to enable implementation and enforcement?

Yes

No

Don't know

Please explain your answer.

Question 23 - Are the exemptions from location restrictions based on individual store relevant floor area clear and sufficiently defined to enable implementation and enforcement?

Yes

No

Don't know

Please explain your answer.

Question 24 - Please provide any additional comments on proposed exemptions from locations restrictions.

Comment