Restricting promotions of food and drink high in fat, sugar or salt: business and regulatory impact assessment - partial

12. Enforcement, Sanctions and Monitoring

The intention is to use powers in the Food Safety Act 1990 and the Food (Scotland) Act 2015 to provide for the enforcement of the Regulations. This policy will be enforced by local authorities 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.

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 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).

The intention is for local authorities to be able to issue administrative sanctions as an alternative to prosecution. The administrative sanctions 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.

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.

We propose that enforcement officers should be able to issue administrative penalties under the Food (Scotland) Act 2015. Under the 2015 Act, compliance notices and fixed penalty notices can be issued in relation to “relevant offences”. It is our intention that the offences in the proposed Regulations will be considered “relevant offences” and therefore it would be possible for food authorities (i.e. local authorities) to issue compliance notices and fixed penalty notices as administrative sanctions 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.

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.

Guidance

It is important that enforcing authorities and businesses subject to restrictions have information 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 work, it will be important to ensure that all parties understand what is expected of them and their responsibilities for ensuring compliance.

Monitoring

A Monitoring and Review Project Group has been established to give detailed consideration to a structured and evidence-based process to assess the extent to which regulations deliver the intended policy aims. Monitoring and review plans will be detailed in the final BRIA.