Long-awaited government guidance on HFSS regulation is here

The Department of Health and Social Care have today (6) has published detailed guidance to accompany the upcoming HFSS (high fat, salt and sugar) regulations that are set to come into force this October.

The guidance aims to clarify many of the points of confusion around the implementation of the regulations and sets out more information about the way that enforcement officers should look to ensure that the rules are being followed post-implementation.

One area that many retailers have been looking for additional clarification on is the inclusion of symbol groups and franchises. While the guidance provides some additional wording around the intention of the regulations when it comes to symbol and franchise operations, it is still recommended that retailers consult with their symbol group about whether legal advice has been issued on the status of their inclusion within the regulations.

Key clarifications from the guidance document include:

• Products that include volume promotions on their packaging that cannot be removed will be subject to a sell through period of 12 months to October 2023.
• The number of employees that a business has in its entirety, not just the number of employees in England, should be used to decide whether the business is in scope of the regulations. Businesses that have fewer than 50 employees are exempt (subject to symbol/franchise definitions).
• There is more information about what constitutes a ‘relevant special offer’ such as a meal deal, or dine in for 2 promotion, although the guidance states that each individual case will be assessed by enforcement officers.
• Vending machines that are operated by a separate business are not subject to location restrictions, although DHSC encourages retailers not to put vending machines selling HFSS products in otherwise restricted areas of their stores.

ACS chief executive James Lowman said, “While there has been speculation that Government may not be introducing these rules on 1 October, the publication of this guidance should focus retailers’ minds on being ready for the implementation of these rules by this date.

“We encourage retailers to start making preparations now for how they’re going to adapt their businesses to stay on the right side of the law from October, to consult with their symbol groups where applicable and to engage with their suppliers as much as possible.

“The guidance provides a lot of answers for the overall introduction of the rules, but there is still a lot of interpretation that will be left up to enforcement officers when the regulations come into force.

“This kind of potential confusion is exactly why Assured Advice was set up, to provide one interpretation of the rules that has to be respected across England and Wales. We urge retailers to ensure that they’re part of a primary authority scheme such as ACS’ Assured Advice scheme to avoid unnecessary disputes with enforcement officers in the year ahead,” Lowman said.

On enforcement, the guidance document sets out a plan for how officers should approach businesses with a series of questions. Retailers should be able to clarify to enforcement officers:

• Whether their store is part of a business with more than 50 employees
• whether the relevant floor area of the store is less than 2,000 square feet
• are there products that are part of the food in scope categories in a restricted volume price or location promotion in store
• if there are products in these categories on volume price or location promotions, how you have ensured that these are not HFSS or ‘less healthy’ as defined by the NPM score

Where there are issues with stores not following the rules, businesses will first be given an ‘improvement notice’ with further action (including fines) being taken if the notice is not followed.

ACS has published a detailed guide for retailers to help them prepare for the introduction of the HFSS regulations. This guide is backed by Surrey and Bucks Trading Standards as part of ACS’ Assured Advice scheme, which means that wherever you trade across the country, if you follow the guidance your processes must be respected by all local authorities. ACS members can also submit specific questions about promotion and location restrictions in their stores, which can be given Assured answers by Surrey and Bucks.

Government’s full guidance is available here.