Restricting the promotion of high fat, salt and sugar foods: implementation guidance - Part 8: enforcement

We would encourage enforcement authorities to:

• be pragmatic in their enforcement approach
• discuss areas where businesses may not be compliant with the regulations, issuing improvement notices where necessary
• focus on supporting compliance rather than penalising non-compliance

Enforcement authorities have a number of tools at their disposal to enforce the regulations, as set out below. In the first instance, we would encourage enforcement authorities to work with businesses informally or by way of an improvement notice to support and encourage compliance.

The regulations will be enforced by food authorities. In practice, this will be your local authority. The regulations may be enforced by trading standards or environmental health officers depending on local arrangements. Officers will be authorised to carry out their functions to enforce these regulations.

Businesses may work with their primary authorities to ascertain whether their businesses fall in scope of the regulations. Enforcement authorities may wish to liaise with primary authorities when a partnership exists to establish any advice that may have been given to the business.

Enforcement authorities are likely to check:

• whether a store is part of a medium or large business (where the total number of employees operating under that business name is 50 or more)
• whether a store is a specialist store selling one type of product
• whether a store size is less than 185.8m2 (2,000 square feet)
• the presence of any products that are part of the food in scope categories in a restricted volume price or location promotion, in store and online
• if there are products in these categories on volume price or location promotions, to ascertain from the retailer how they have ensured that these are not HFSS or ‘less healthy’ as defined by the NPM score

Enforcement officers have discretion in choosing how to conduct initial or further investigations. In deciding whether to investigate a matter, or investigate it further, factors that they may take into account include information from the retailer, or evidence obtained from wholesalers or manufacturers on the content of food products.

To assess compliance with the restriction on free refills of sugary drinks in scope of the regulations, enforcement authorities are likely to check:

• whether the business (for example, restaurant) is part of a medium or large business (where the total number of employees operating under that business name is 50 or more)
• the presence of any ‘free refill’ offers on drinks that are in scope of the regulations
• if there are free refills offered on drinks, to ascertain from the business how they have ensured that these are not HFSS or ‘less healthy’ as defined by the NPM score

Where enforcement officers require access to this information as a means of assessing a business’ compliance with the regulations, the regulations provide enforcement officers with powers of entry, which include the ability to inspect the records (in whatever form they are held) relating to a food business. It would assist enforcement officers in assessing a business’ compliance with promotion and presentation restrictions, if the businesses had available:

• store planograms, for example, planograms that provide the store’s dimensions and the size and location of concessions within the store
• details of the total number of employees operating under the business’ name

Enforcement officers may also ask you how you are calculating the NPM score for your products and what information you hold from suppliers. It may be helpful for you to retain any records which could assist you in answering these questions.

Enforcement officers of food authorities will work with businesses to support their compliance with the law. If a food authority has reasonable grounds to believe that a person is failing to comply with the regulations, they could serve an improvement notice on that person.

However, improvement notices are discretionary and need not be the first action taken when an enforcement officer uncovers a potential infraction. Enforcement officers are permitted and encouraged to have initial conversations with businesses to resolve potential non-compliance and advise on how to comply before issuing formal notices. Serving an improvement notice may be a means of escalation following continued non-compliance. Further information and a flowchart outlining the processes for enforcement of the regulations have been included in annex 1 and annex 2.

Businesses in scope of the policy that may have a primary authority relationship are encouraged to discuss compliance matters with them. Enforcement teams responsible for compliance issues can also be contacted for support.

The Advertising Standards Authority (ASA) is the UK’s independent advertising regulator.

They have been administering the UK code of non-broadcast advertising and direct and promotional marketing (written and maintained by the Committee of Advertising Practice) for over 50 years and the UK code of broadcast advertising (written and maintained by Broadcast Committee of Advertising Practice) for over 15 years, with their remit further extended in 2011 to include advertising claims on companies’ own websites and in social media spaces under their control.

The ASA might be made aware of a relevant promotion through its complaint handling or otherwise identify one in the course of its proactive monitoring activities.

These regulations only apply to volume price promotions and location restrictions pertaining to specified food sold in qualifying businesses. The regulations act independently of the existing Committee of Advertising Practice code.

If a piece of content is in scope of the promotions restrictions and potentially in breach of the UK advertising codes, and this comes to the attention of the ASA, then it will refer the matter to the relevant enforcement authorities. Compliance with these regulations takes precedence over the non-statutory UK advertising codes.

The ASA will refer cases it identifies to the relevant enforcement authorities for action. Only food authorities have the power to issue improvement notices and fixed monetary penalties under these regulations.