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

Section 6: Enforcement and implementation

145. In our 2022 consultation, we proposed:

• Enforcement functions should be delivered in a way that is transparent, accountable, proportionate, consistent, and targeted only where necessary, as set out in the Scottish Regulators' Strategic Code of Practice;
• To give local authorities the role of enforcing the proposed policy;
• To give Ministers powers to issue guidance to local authorities to support effective enforcement of the proposed policy;
• To develop materials for industry to support effective implementation;
• To work closely with the Convention of Scottish Local Authorities (COSLA) and others to consider resourcing, training and guidance to support effective and consistent implementation of the policy; and
• To work closely with COSLA and others to consider an appropriate and proportionate enforcement regime that supports compliance.

146. In feedback to the consultation, individuals and non-industry respondents tended to support the proposal for local authorities to enforce the policy. Industry respondents also supported that proposal but to a lesser extent. A substantial proportion of industry and non-industry respondents did not indicate a preference. Agreement tended to be on the basis that local authorities are well placed to enforce the policy based on their existing knowledge and relationship with relevant businesses. It was also noted that sufficient capacity and resources would need to be available to local authorities to enable effective enforcement of the policy.

147. A more detailed breakdown of the feedback is available in section 8 of the independent analysis report of the consultation, published in May 2023.

148. Taking this feedback into account, we propose that local authorities will be responsible for enforcing the policy on the basis that they have experience of similar enforcement, have local knowledge and can incorporate enforcement of the policy into other inspection visits, where appropriate.

149. In addition, we propose:

• The enforcement process should be fair and proportionate, with a focus on supporting compliance;
• Relevant enforcement powers for handling non-compliance with legal requirements and relevant offences will be available to local authorities;
• Guidance will be issued to local authorities to support effective enforcement; and
• Guidance will be developed for industry to support effective implementation.

UK Government regulations for England

150. Enforcement of the UK Government regulations in England will be carried out by food authorities in their local areas. Whilst the local government landscape differs in England, overall this is a comparative approach to what we are proposing for Scotland, using existing arrangements to create an appropriate and proportionate approach to regulation.

Enforcement powers

151. The intention is to use powers in the Food Safety Act 1990 and the Food (Scotland) Act 2015 to provide for enforcement of the Regulations. It is intended that local authorities (as food authorities) will be responsible for enforcing the policy.

152. It is important that enforcement of the Regulations is fair and proportionate. Non-compliance with the requirements or restrictions set out in the Regulations will amount to an offence, the ultimate penalty for which could result in a criminal penalty. The maximum criminal penalty proposed is that a person found guilty of an offence will be liable on summary conviction to a fine not exceeding level 4 on the standard scale (£2,500)^[32]. However, the intention is for local authorities to be able to issue administrative sanctions as an alternative to prosecution. The proposed administrative sanctions which would be made available would be compliance notices and fixed penalty notices – with compliance notices likely being available initially and fixed penalty notices at a later date. The administrative sanctions are intended to give enforcement officers more flexibility to deal with the offences. They would help ensure people who commit the offences can be dealt with more quickly and at less cost than if criminal sanctions alone were available.

153. Whilst administrative sanctions may be appropriate for most instances of non-compliance, there may be cases, for example where there are repeat offenders or large scale non-compliance, where prosecution may be more appropriate.

154. We propose that enforcement officers will be able to issue administrative penalties under the Food (Scotland) Act 2015. Under the 2015 Act, compliance notices and fixed penalty notices can be utilised in relation to "relevant offences". It is our intention that the offences in the proposed Regulations will be considered "relevant offences" and therefore appropriate use of administrative penalties such as compliance notices and fixed penalty notices would be applicable where those offences are committed. Aligning with the enforcement regime for other offences in food law should provide for consistency and clarity for business and enforcement authorities.

155. Further provision about compliance notices and fixed penalty notices is included in sections 36 to 52 of the 2015 Act. Compliance notices and fixed penalty notices may be issued by authorised officers of the appropriate enforcement authority. In this case, the enforcement authority would be local authorities acting as food authorities.

156. A compliance notice will require a person or business to take steps to ensure they stop committing a relevant offence. A notice can only be issued if the authorised officer is satisfied to the "specified standard" that the person has committed an offence. In line with the Food (Scotland) Act 2015 (Compliance Notices) Regulations 2023 (the 2023 Regulations), it is proposed that the specified standard of proof would be the balance of probabilities. This means that an officer needs to be satisfied that the offence has taken place, on the balance of probabilities, before issuing a notice.

157. The steps required to comply will be set out in the notice itself. The information that needs contained in the notice is set out in section 43 of the 2015 Act. It must, in particular, include the period of time within which the required steps must be taken - as determined by the authorised officer. Scottish Ministers have the power to set the maximum period of time this can be from the date the notice was issued ("the specified period"). In line with the 2023 Regulations, it is proposed that the specified period for these offences should be 14 days.

158. The Act provides that, if the person complies with the notice, then they cannot be convicted of the offence. They also cannot be convicted while a notice is still in force. A compliance notice cannot be issued in relation to an offence arising out of a particular act or omission if a notice has previously been issued in relation to the same offence arising out of the same act or omission or if criminal proceedings have already been brought.

159. Failure to comply with a compliance notice is an offence, for which a person is liable on summary conviction to a fine not exceeding level 5 on the standard scale (£5,000).

160. A person or business may appeal to a sheriff against the decision to issue the compliance notice. Appeal is by way of summary application, and must be made before the end of "relevant period" - being the earlier of either the compliance period or a period of one month beginning with the date the notice was issued. Details of the appeals process are provided in section 48 of the 2015 Act.

161. Fixed penalty notices may be issued in relation to relevant offences and are notices which allow a person to pay a sum of money to discharge their liability for the offence. The sum of money must not exceed level 4 on the standard scale (£2,500). The information that must be included in a fixed penalty notice is set out in section 37 of the 2015 Act. If a fixed penalty notice is issued, no criminal proceedings can be brought within the period for payment. If payment is made in accordance with the notice, the person cannot be convicted of the offence. A fixed penalty notice cannot be issued in relation to an offence arising out of a particular act or omission if a fixed penalty notice has previously been issued in relation to the same act or omission or if criminal proceedings have already been brought.

162. Under the 2015 Act, the Scottish Ministers have powers to make regulations to set the period of time within which payment is to be made, the standard of proof which applies when issuing the notice, and to make further provision about the form and content of fixed penalty notices. We propose that the standard of proof applying when issuing fixed penalty notices for these offences would be the balance of probabilities, and regulations would provide for a fair period for paying notices.

Guidance

163. It is important for enforcing authorities and businesses subject to restrictions to have clarity to support effective implementation and enforcement of the policy. To support this, we will work with appropriate stakeholders to develop guidance for both local authorities and businesses. As part of that, it will be important to ensure that all parties understand what is expected of them and their responsibilities for ensuring compliance.

Local authorities

164. We will develop guidance for local authorities to support enforcement of the regulations. We will work closely with COSLA, Food Standards Scotland (FSS) and others as appropriate to develop this guidance, which we would expect to include information on, among other things, the maximum penalties and the circumstances in which a penalty is likely to be imposed or not, how liability for the penalty may be discharged, and rights to make representations and objections or to appeal.

165. We will also continue to work closely with COSLA and others to consider resourcing and training to support effective and consistent implementation of the policy.

Businesses

166. We will develop guidance materials for businesses, in consultation with relevant stakeholders, to support effective implementation of the policy. This guidance will be additional to guidance for local authorities.

167. We will look, as appropriate, at the guidance developed by the UK Government for industry to support implementation of their regulations.

Implementation period

168. In feedback to our 2022 consultation, industry respondents tended to favour a longer lead in time to allow for preparation for implementation and enforcement of the policy. Some did not indicate a time frame and instead suggested that the time required would depend on the final scope of the policy and the extent to which it aligned with the regulations for England. Non-industry views were mixed and a high proportion did not offer a view. Individuals were split between 12 and 24 months.

169. Taking this feedback into account, and in view of our detailed policy proposals and the extent to which these are consistent with the regulations for England, we propose a 12 month lead in time from when regulations are laid to them coming into force to allow preparation for enforcement and implementation of the policy.

Monitoring and Reporting

170. We will consider the enforcement monitoring and reporting mechanisms as part of the policy's implementation. We will work closely with COSLA, FSS and others as appropriate to utilise existing systems, streamlining the process where possible.

Questions

Question 25 - Do you agree with the proposed use of administrative sanctions for enforcement of the policy?

Yes

No

Don't know

Please explain your answer.

Question 26 - Do you agree with the maximum penalties proposed for the offences in relation to enforcement of the policy?

Yes

No

Don't know

Please explain your answer

Question 27 - Is the proposed 12 month period following the introduction of regulations sufficient to prepare for:

a. Implementation? Yes/ No/ Don't know

b. Enforcement? Yes/ No/ Don't know

Please explain your answers.

Section 7 – Other comments

Question 28 - Please outline any other comments you wish to make on this consultation.

Comment