Regulatory Outlook

Food Law | UK Regulatory Outlook July 2023

Published on 26th Jul 2023

HFSS restrictions across the nations | Ofcom respond to consultation on online HFSS advertising | Expected revised guidance on precautionary allergen labelling

HFSS restrictions across the nations

As flagged in last month's Regulatory Outlook, the UK government announced that the promotion restrictions on high in fat, salt, or sugar (HFSS) products in England such as "buy one, get one free" will be further delayed for another two years until 2025.

Across the devolved nations, the Scottish government has also announced that it will be consulting on detailed regulations to ban HFSS promotions in the autumn, with restrictions set to be introduced in 2025 at the earliest.

The Welsh government has also announced that a new law on promotion restrictions, will be introduced in 2024 and will be rolled out across Wales by 2025. The Welsh government has stated that it intends also to look at temporary price promotions and meal deals, outlining that this would not ban meal deals or other types of promotion but would restrict the inclusion of the unhealthiest products. The Welsh government will be launching a consultation later in 2023.

Businesses who will be affected by these restrictions should keep an eye out for updates on the introduction of the restrictions and on the publication of the consultations in Scotland and Wales and consider whether they want to respond. Additionally, the various consultations and delays could also mean that we may see some divergence between the HFSS restrictions across the UK. For example, the Welsh government has stated it is to consult on including meal deals within its restrictions: this is something that has not been considered by either England or Scotland.

Ofcom respond to consultation on online HFSS advertising

As detailed in our Insight, Ofcom launched a consultation on its proposed approach to implementing new restrictions due to come into force in October 2025 on advertising for "less healthy" food and drink products that are high in fat, salt or sugar. The new rules will prohibit TV services and on-demand programme services from including advertising and sponsorship for less healthy food and drink products between 5.30am and 9.00pm; and paid-for advertisements for these products, where they are aimed at UK users, are prohibited from being placed online at any time.

Ofcom's response confirms that the ASA will be the co-regulator for the online advertising prohibition and confirming that the Broadcast Committee of Advertising Practice (BCAP) Code and the Broadcasting Code will be updated to reflect the new restrictions that apply to advertising and sponsorship on TV.

Expected revised guidance on precautionary allergen labelling

As detailed in our April issue of the Regulatory Outlook, the Food Standards Agency (FSA) launched a consultation as part of a routine review and update of the "Allergen Labelling Technical Guidance". The FSA's page states that a summary of responses should be published within three months of the consultation ending, which was in May. Therefore we expect that an update on the how the guidance will be changing could be published this summer.

Revision of EU marketing standards for certain 'breakfast' directives

briefing was published this month on the European Commission's proposals to update the "breakfast directives". The proposed directive, to be transposed into national legislation within 18 months of its entry into force, amends four of the seven "breakfast directives", changes include:

  • Honey – introduce the requirement to list all of the countries from where the honey originates on the packaging (single portions of honey will be exempt from this requirement).
  • Fruit juices – reintroduce without a time limitation, of the possibility to use the claim "with no added sugars" for fruit juices. 
  • Jam and marmalade – increase the general minimum fruit content of "jam" and "jelly" to 450g/1000g, the current amount is 350g/1000g.
  • Dehydrated milk – authorise a treatment to produce lactose-free dehydrated milk products and also remove the distinction between evaporated and condensed milk.

These changes provide a further example of post-Brexit divergence in food law and is something that businesses should be wary of. It has already been reported that jam manufacturers in the UK are concerned about the effect these changes could have on them being able to export their products to the EU as EU law will differ to that of the UK.

FSA launch consultation on the Additional Proposal for Enhanced Investigatory Powers

The FSA has this month launched a consultation on proposed additional investigatory powers for the FSA National Food Crime Unit (NFCU), which is the law enforcement unit of the FSA.

This consultation seeks views on additional powers for the NFCU under the Police, Crime, Sentencing an Courts Act 2022, namely powers of entry and assisting with searches of premises following an arrest. The consultation document notes that there remains no intention for the FSA to seek access to powers of arrest for its food crime officers.

The responses from this consultation will inform the recommendations made by the FSA to the Secretary of State who will then decide on the content and timing of any legislation to make these changes.

FSA publish three-year corporate plan

The FSA has published its three-year corporate plan which outlines how it will turn its ambitions into "concrete actions". The FSA has set out details of specific activities that it intends to deliver for the next three years which includes:

  • developing a new regulatory regime for precision bred food and feed, with the aim to consult in 2023/2024 and expect to make necessary regulations in 2024;
  • exploring reforms to the regulated products regime through powers likely to be created under the Retained EU Law Bill, which includes the regime for authorisation of novel foods; and
  • ensuring food standards and public health are maintained under the arrangements of the Windsor Framework for trade between Great Britain and Northern Ireland.

Details of all the activities the FSA will aim to achieve in the next three years can be found in appendix one of the plan, which illustrate that the FSA intends to make a number of regulatory changes over the next three years.

Call to action

Post Brexit we are now starting to see early signs of divergence in food regulation both between Great Britain (GB) and the EU, but also within GB with the Scottish and Welsh parliaments planning to take different approaches to key issues including HFSS. Businesses need to be actively monitoring the situation to ensure that labelling, advertising and processes remain compliant across an increasingly fragmented regulatory regime.


* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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