[Responsible Business] HFSS Regulations: Navigating the impact on retailers

Amy Au from Irwin Mitchell’s Intellectual Property team explores the impact of High Fat Sugar Salt (HFSS), highlighting which restrictions are currently in place and what is in store for the future.

There is increasing concerns and evidence linking obesity to serious health conditions in both children and adults. Over the past few years, the government has introduced regulations aimed at restricting the promotion, placement, and advertising of high fat, salt, or sugar (HFSS) food and drinks in stores and online. These regulations are intended to have a positive impact on public health and specifically target reducing children’s exposure to HFSS products.

The implementation of the HFSS regulations will take place over a 5-year period. It is important to understand the scope of these regulations and what they mean for businesses in the retail industry.

One aspect to consider is which businesses qualify and are in scope of the regulations. Retailers with 50 or more employees who offer prepacked food for sale in-store and/or online are within the scope of the regulations. However, there are exemptions for certain establishments such as restaurants, cafes, coffee shops, schools, care homes, businesses smaller than 2000 square feet, and specialist shops like sweet shops.

The products that are covered by the regulations are those deemed to be HFSS according to the government’s Nutrition Profiling Model. This includes sugary soft drinks, crisps, biscuits, sweets, and cakes. However, out-of-home products and meal deals are exempt from these regulations.

What are the current restrictions?

Currently, there are several restrictions in place:

• Businesses must avoid publishing misleading advertisements relating to the nutritional content of HFSS products.
• Advertising HFSS products is not permitted in media directed at children under the age of 16 or where children under 16 make up more than 25% of the audience.
• HFSS products are also prohibited from being placed in or adjacent to television programmes primarily directed at or likely to appeal to audiences below the age of 16.
• Qualifying businesses are restricted from placing HFSS products in key locations such as store entrances, checkouts, queuing areas, and aisle ends.
• Qualifying businesses are also restricted from advertising HFSS products on website homepages, on the same webpage as a non-HFSS product, pop-up pages, and on ‘recommended for you’ or ‘favourites’ webpages unless specifically identified by the consumer.

Looking ahead, there will be further restrictions in the years to come:

In January 2025, a ban on adverts for HFSS products on TV before 9pm will be implemented.

In October 2025, qualifying businesses will be prohibited from offering volume price promotions for HFSS products, such as ‘3 for the price of 2’ or ‘buy one get one free’. Meal deals and dine-in for 2 deals will be exempt from this restriction. Discounts, free samples, vouchers, and similar promotions will also be exempt.

It is important to comply with these regulations, as there are consequences for non-compliance. Breaching the regulations may result in the issue of an improvement notice and a penalty of £2,500. Additionally, non-compliance with advertising and broadcast regulations may lead to a publishable adverse decision causing reputational harm. Search engines may remove paid-for adverts or links to adverts containing misleading information, and social media companies may remove non-compliant adverts. Trading standards may take enforcement action, impose fines, and in severe cases, there are criminal sanctions including imprisonment for the worst offenders.

Help and Support

Our Intellectual Property team would be delighted to discuss the issues arising from the HFSS regulations.

RELATED ARTICLES