Restricting the promotion of high fat, salt and sugar foods: implementation guidance - Part 7: liability

Businesses in scope of the regulations that promote food in scope in a way that does not meet the requirements of the legislation will be liable to enforcement action, unless an exemption applies.

It is expected that qualifying businesses will need to assess whether the products they sell fall within the Schedule 1 categories in the regulations. If they do, businesses will need to assess whether these products are ‘less healthy’ by calculating their NPM score. If a product is deemed to be ‘specified food’, then it will be the responsibility of the business to ensure that they comply with the restrictions on promotions as set out in the regulations.

Qualifying businesses are responsible for ensuring the products they are promoting are compliant. Most of the necessary information to calculate NPM scores (for example, the amount of energy, kilojoules (kJ), sugars, saturated fat and so on in 100g of the food or drink) is already provided on packaging.

If businesses require further information (for example fibre, fruit, vegetable and nut content), then they may choose to seek this from manufacturers (if it is not already publicly shared). Manufacturers may choose to provide NPM scores to businesses if they wish for them to promote a product that is in a Schedule 1 product category but that is not HFSS or ‘less healthy’ due to its NPM score.

Nutrition or ingredient information provided by a manufacturer should be accurate and not misleading. If information provided by a manufacturer is considered misleading, an enforcement authority may take enforcement action against the manufacturer under separate legislation. Manufacturers already have certain obligations about nutrition information with which they need to comply and it is an offence to put misleading nutrition information on the packaging.

If qualifying businesses are offering food in scope on a third party website or online platform, they will have to comply with location and volume price promotions restrictions in respect of the products they are selling. Restaurants are out of scope of promotions restrictions (except for free drink refills), but retailers are in scope and liable to enforcement action.

Retailers must therefore not cause specified food to be offered for sale on parts of online aggregator sites or apps (such as, the online marketplace) that may be captured by promotions restrictions, such as checkout pages or pop-ups on retailers’ sections of the app or site.

Retailers are responsible for ensuring any contracts in place with the online delivery platform make clear that the law must be followed. They must also ensure that the products they sell are compliant with the location and volume price promotions restrictions on these types of platforms, where they remain responsible for this food being offered for sale.

Although retailers are responsible for the sale of their products online, online aggregators may also have such a responsibility. This could arise, for example, when aggregators advertise, promote or facilitate the sale of products on behalf of a trader.

A court will consider the facts of each case when deciding if the actions of online delivery platforms and aggregators have led or contributed to a breach of the regulations. Enforcement officers may contact all relevant parties when considering compliance and may consider other mechanisms for enforcement.