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Scottish Government Chews The Fat On New Food Marketing Restrictions

Scottish Government Chews The Fat On New Food Marketing Restrictions

Food & Drink

On 2 October 2018, the Scottish Government issued its consultation paper, Reducing Health Harms of Foods High in Fat, Sugar or Salt, seeking views on proposed restrictions it hopes will improve the nation’s public health record. While Scotland is world-renowned for the quality of its produce, it has consistently had one of the poorest public health records in Europe.  The Scottish Government’s proposals aim to make Scotland a “Good Food Nation” – a nation renowned not only for the food we produce but the food we consume.  The paper emphasises that a “multi-pronged” approach is required and that no single measure will reverse the situation. That being said, all the proposals in the consultation paper are in respect of marketing and promotions.
 
The proposals on which views are sought follows on from the Scottish Government’s paper A Healthier Future: Scotland’s Diet and Healthy Weight Delivery Plan in which it set out its vision for improving the nation’s public health record.  The products targeted by the measures are described as “discretionary foods”, which are defined as food and drink categories which are high in fat, sugar or salt but have little to no nutritional value (eg. confectionary, crisps, fizzy drinks). The consultation paper highlights some alarming statistics about the average Scot’s diet. While the focus is on discretionary foods, the consultation paper does seeks views on whether the scope of the proposed restrictions should be extended beyond discretionary foods.  The consultation also seeks views on the categories included under “discretionary foods” and whether foods such as ice-cream and other dairy products should be included.
 
The proposed restrictions seek to curtail a number of marketing and promotional practises which are thought entice consumers at the point of purchase. One such restriction is on price promotions such as multi-buys which are shown to a have a strong influence on consumer expenditure.  The consultation also seeks views on proposed restrictions on the marketing of discretionary foods in-store, including restrictions on where products may be placed, the branding and advertising and even the limiting of floor-displays and branded refrigeration units. There are even proposals to prohibit the sale or lease of in-store spaces and prohibiting manufacturers and distributors from providing promotions or marketing material and making arrangements for the display of restricted products.
 
It should be noted that the consultation paper makes it clear that there are certain restrictions which are not being considered:

  • Temporary price reductions;
  • Multi-packs;
  • Packaging; and
  • Size/volume of foods and number of products displayed.

The consultation paper also identifies several areas where exemptions might be necessary, for example, where discretionary foods are discounted as they are close to expiry, the restrictions on pricing would not apply. The paper also proposes an exemption from restrictions on in-store placement of products where there is no alternate location.
 
The restrictions would apply to all venues where targeted foods are sold to the public, however, views are sought on whether this should be extended to online enterprises as well.  The paper clearly states that the restrictions would not apply where the restricted products are not sold in the course of business eg. charity bake sales.
 
What is clear from both the consultation paper and the policy itself is that, if these new restrictions are brought in, it will have far-reaching consequences for the food and drink industry.  Many businesses, irrespective of their location in the supply chain or their size, would need to review and revise their promotion strategies if these proposals are adopted.
 
The consultation is open until Wednesday 9th January and responses will inform the consideration of legislation and impact assessments.

Craig MacLeod
Trainee Solicitor

Joanna Fulton
Partner

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