Restricting the promotion of high fat, salt and sugar foods: implementation guidance - Annex 1: enforcement process

Improvement notices

Improvement notices provide businesses with the ability to take corrective steps before any penalty is levied. Improvement notices should provide a roadmap to compliance. The regulations require these notices to specify details such as the:

• matters which constitute the failure to comply
• time period within which measures must be taken to secure compliance

The period given for a business to secure compliance under an improvement notice will be for enforcement authorities to consider on a case-by-case basis, when exercising their functions.

There will be an appeal process available if an improvement notice is contested (appeals will be made to a Magistrates’ Court), which will effectively ‘stop the clock’ for the time allowed to comply until the appeal has been heard.

Any person who fails to comply with an improvement notice may be guilty of an offence.

There are 2 options following an offence committed:

• The offending business is criminally prosecuted, which may result in an unlimited fine per offence.
• An enforcement officer can impose a fixed monetary penalty (FMP) of £2,500 (a civil sanction). In accordance with the Regulatory Enforcement and Sanctions Act 2008 (RESA), enforcement authorities will exercise their powers to impose an FMP in a way which is proportionate, consistent and targeted only at cases in which action is needed.

Enforcement actions will be taken in accordance with the authorities’ enforcement policy.

When an enforcement officer proposes to impose an FMP on a person who has failed to comply with an improvement notice, the officer must serve a notice of intent on the recipient. The notice of intent will:

• set out the grounds for the proposal to impose an FMP
• state that the proposed FMP will be £2,500

Information that must be included on a notice of intent is included in the regulations.

The FMP proposed can be discharged if a person who receives a notice of intent pays 50% of the amount of the penalty within 28 days (beginning with the day on which the notice was received).

Additionally, a person on whom a notice of intent is served may, within 28 days (beginning with the day on which the notice was received), make written representations and objections to an enforcement authority in relation to the proposed imposition of the FMP, setting out why they feel an FMP would not be appropriate, which an enforcement authority will consider before coming to a final decision.

If the person who has received a notice of intent does not discharge liability within 28 days, an enforcement officer may serve a final notice imposing an FMP of £2,500.

The information that must be included on a final notice is included in the regulations, this will include:

• information on the grounds for imposing the FMP
• how payment must be made
• the consequences of non-payment

The enforcement officer may not serve a final notice on a person where the officer is satisfied that the person would not, by reason of any defence, be liable to be convicted of the offence to which the notice relates. Where an enforcement officer serves a final notice relating to an FMP, they may not serve any other notice under these regulations in relation to the offence.

If a person who is served with a notice of intent makes representations or objections concerning that notice within the time limit, that person may discharge the final notice by paying 50% of the penalty within 14 days (beginning with the day on which the final notice was received).

A person receiving the final notice may appeal against it. Persons will have a period of 28 days after a final notice is served to appeal the notice. Rights of appeal will be made clear in any final notice served and appeals will be dealt with by a First-tier Tribunal in the General Regulatory Chamber.

The grounds for appeal are that the decision was:

• based on an error of fact
• wrong in law
• unreasonable
• wrong for any other reason

Enforcement authorities can, at any time in writing, withdraw a notice imposing a fixed monetary penalty (see paragraph 13 in schedule 2 to the regulations).

The FMP must be paid within 28 days of receipt of the final notice. If the FMP is not paid within Done days of the final notice, the amount payable is increased by 50%.

In the case of an appeal, it is payable within 14 days of the determination of the appeal (if the appeal is unsuccessful) and, if it is not paid within 14 days, the amount of the FMP is increased by 50%.

If a notice of intent for an FMP is served on any person:

• No criminal proceedings for the offence may be instituted against that person in respect of the act or omission to which the notice relates before the expiry of the period of 28 days (starting from the date on which the notice of intent is received).
• If that person discharges liability, that person may not at any time be convicted of the offence. If an FMP is imposed on a person, that person may not at any time be convicted of the offence in respect of the act or omission giving rise to the penalty.

As mentioned previously, FMPs provide a means to respond to non-compliance of the regulations with a civil sanction as an alternative to prosecution.

However, it is in the discretion of an enforcement officer to criminally prosecute an offence committed after not meeting the terms of an improvement notice. Each case will be assessed on its own merits. For example, an enforcement officer may consider a prosecution is more appropriate if they consider that the business has committed a serious, deliberate or repeated breach of the regulations.

Enforcement authorities will be required to produce guidance about their use of the power to impose FMPs and how they will be used to enforce an offence. This will include:

• information on the circumstances in which a penalty is likely to be imposed or not
• how liability for the penalty may be discharged
• rights to make representations and objections or to appeal

This could be done as part of the usual consultation, development and publication of an enforcement authority’s policy. Enforcement authorities must consult with such persons as they consider appropriate before publishing or revising guidance.

For example, this is likely to include business that fall in the scope of the regulations, and they may also wish to consult smaller business (with under 50 employees) and local partners.

Each enforcement authority must publish reports from time to time about the enforcement action it has taken under the regulations. These reports must specify the cases in which:

• an FMP has been imposed, except where it has been overturned on appeal
• liability to the FMP has been discharged by payment of the penalty following the notice of intent and without further action being taken

In line with the regulations, enforcement authorities will consider case sensitivity and refrain from publication of information where they consider that would contravene data protection legislation.