Food (Promotion and Placement) (England) Regulations 2021
(3 years ago)
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Lord Kamall
That the Grand Committee do consider the Food (Promotion and Placement) (England) Regulations 2021.
Relevant document: 12th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
My Lords, obesity is seen as one of the biggest health problems this country faces. The latest national child measurement programme data from 2020-21 showed that around 40% of children leaving primary school were overweight or obese, with one in four living with obesity. Regular overconsumption of food and drink high in calories or the consumption of sugar and fat can lead to weight gain and, over time, obesity, which in turn has a significant impact on health and well-being and increases the risk of certain related diseases.
The Covid-19 pandemic has highlighted the impact that obesity can have on people’s health. Evidence from a University of Liverpool study shows that those who are overweight or living with obesity and who contract Covid-19 are more likely to be admitted to hospital and suffer worse complications. This measure is part of the Government’s healthy weight strategy, which we hope will contribute towards achieving the ambition of halving childhood obesity by 2030.
The instrument we are discussing today concerns the introduction of restrictions on promotions of less healthy products by volume price and location for retailers in England with 50 or more employees. Location restrictions will apply to store entrances, the ends of aisles, checkouts and their online equivalents—for example, home pages and payment pages. Volume price restrictions will prohibit retailers from offering promotions such as buy one, get one free or three-for-two offers on less healthy products.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, the noble Baroness, Lady Brinton, will contribute virtually as the Liberal Democrat Front-Bencher at the appropriate point in the debate.
Lord Brooke of Alverthorpe (Lab)
My Lords, I am grateful to the Minister and the Government for the initiative, which I would describe as making tentative moves to try to reduce the growth of obesity. I declare an interest as vice-chair of the All-Party Parliamentary Group on Obesity, and I am grateful to the Obesity Health Alliance, which has recently produced a very wide-ranging and thorough examination of the problem. I am grateful to it for the briefing.
It is worth remembering that the last serious attempt to tackle this was after the coalition Government came into power in 2010-11, when an alcohol strategy was drawn up and there was an engagement between government and the private sector, and the many representatives of the health business, if I can describe it like that, who were anxious to see changes effected. We had the creation of the responsibility deal, which ran from 2011 through to 2015, when it collapsed. The health officials were unhappy about the way in which the agenda was being run, and in 2013 many of them withdrew because they felt that the private sector—the manufacturers and retailers—were controlling the agenda and that public health was rather lower down the line than profits. So it went in 2015, and since then we have had very little change, apart from a growth in obesity.
On the alcohol front, on which we have spoken from time to time, apart from with youngsters there continues to be a problem there, with more and more people going into hospital and more and more people dying from liver problems. The real concern here has been with the growth in obesity among youngsters. We have been at this since 2006, when the Labour Government first kicked it off with the national measurement scheme. Initially, the idea was that we would engage over a very wide area, but because of the continuing cuts that have taken place in public expenditure at local level, it has not really made a great deal of headway. We have had a fallow period, with many of us complaining over the years, but it would be churlish not to say that I welcome this move, although that is not to say that I am going overboard over what the Government are proposing.
I have a number of questions. It has taken us six years—seven years, really, since it will be 2022 by the time we finish the consultation with the parties involved and this is put into effect—but the document talks about waiting another five years to do a review. Unless I have misunderstood, it will be five years before it is fully reviewed again. Could you correct me if I am wrong or, if I am right, explain why we have to wait another five years, which means that we will have run from 2010 to 2027 before we really look at some of the serious proposals made by the Government?
Secondly, I would like to know who is covered by the square footage provision. Obviously, hypermarkets and supermarkets are covered, but I would like to know whether convenience stores are also covered. I live in Battersea, near the bridge, and next to us we have a local co-op that does extraordinarily good business. Would it qualify to be covered by the changes that are proposed? I cannot remember the figure, but it may be 1,200 square feet. I would be grateful if the Minister could say whether convenience stores fall into it, because they are major retailers in this context as they sell nearly half as much as the supermarkets do. If they are not covered, it will be a major omission and something that we would want to return to.
Thirdly, I listen carefully to everything the Minister says as he finds his way with his new brief. At his first Questions, he talked about unintended consequences and said that it is very important when we are making changes that we try to foresee them. I am particularly interested in seeing how retailers effectively drive a coach and horses through so many areas of legislation with their ability to place their goods in a position which sells them best for them but on the other hand brings them to the attention of children, in particular.
Again, I mention my local Co-op. No longer can people see cigarettes. They are hidden. It took years to get that changed, but it is a worthy development that was put through by the Government. When I go in, I am now surrounded by alcohol. We have all this about advertising, thresholds and the rest of it, yet when children stand in the queue to buy their Mars bars in the Co-op, they are surrounded by alcohol and, on the other side, by doughnuts and a host of sweeties which are attractive to them and which, as we know, are at the heart of the growth of obesity. I wonder whether the Government have thought through what will go in place of the movement of some of these articles which are presently being sold, which have been identified as being very risky from a health point of view. If they do not cover it, I suspect we will find, for example, that alcohol goes there, which is what has happened previously. I know that is not about child obesity, but none the less it relates to obesity, as 10% of all obesity comes from the sugar in alcohol. So we are continuing with the same problem, especially given that we still do not have any indication on alcohol. You queue there, and there is no indication of the sugar content or the calorific effects in the drinks. Perhaps the Minister might say what the Government are intending to do about that. I know it is not in this document, but it is all interrelated with obesity, and we cannot separate it too much.
In another initiative, trying to be as positive as I can be with the Committee, Sir Keith Mills, who was responsible for Air Miles and Nectar points, has been doing a special piece of work for the Prime Minister and has come up with a number of trials. Is there a correlation between the work that will be put in place in this document and what he is endeavouring to do in incentivisation? I may sound negative, but I believe in incentives to encourage people to eat and drink better and I believe in trying to find incentives in which the private sector, particularly retailers, will not to try to take advantage but will work together so that we will see positive incentives offered to them to effect changes in the formulation of food and the way in which they present drink and food in retailing terms. Is there a link between the activities he is undertaking?
Finally, can we see more experimentation? I am very pleased that Sir Keith Mills is doing that. Wherever we can try to engage with those who are interested in the private sector, we should try to get joint working taking place where, if the Government see it works yet the private sector does not want it, they will do what they are doing today. I hope they will stick to their guns, legislate and make the changes stick rather than change their mind and run away under pressure from the industry.
Baroness Neville-Rolfe (Con)
My Lords, I congratulate the Minister on his clear and succinct explanation of these regulations and of the risks of obesity, which we have witnessed a great deal during the Covid crisis. The noble Lord, Lord Brooke of Alverthorpe, then spoke about the APPG’s work on obesity.
I probably should register an interest. Although I no longer have direct food sector interests, I have shares in Tesco. In fact, I recall that it moved early in banning sweets from checkouts, but obviously it will incur costs from these regulations. I also have shares in Amazon, which, I suspect, could benefit from a shift online as a result of the regulations, which probably bear less heavily on online.
Forgive me for a brief diversion, but I was absolutely delighted to see that the regulations were made under the Food Safety Act. The passage of that Act was one of my proudest achievements as a civil servant. In fact, I supported the late Baroness Trumpington, whom I miss so much; she even gave me a toy pig for my baby, which has now been passed on to the next generation.
Baroness Brinton (LD) [V]
My Lords, I declare an interest as a vice-president of the Local Government Association. I thank the Minister for his introduction to these regulations. The comments of the noble Lord, Lord Brooke of Alverthorpe, as chair of the APPG on obesity, were particularly helpful.
These regulations sit behind recently revealed alarming figures showing that nearly a quarter of children are overweight or obese when they start primary school. That figure has risen to a third by the time they leave at 11. The Government are right to be concerned about the overconsumption of food and drink high in calories, sugar and fat, which leads to obesity and associated obesity illnesses. I will come on to the regulations shortly, but from these Benches we want to make two other comments.
First, the Conservatives in government have consistently cut public health budgets to local authorities over the last six years. The King’s Fund says that, on a like-for-like basis, the 2019-20 budget is 15% less than that of 2013-14, including a more than 5% cut to obesity services. In addition, the reduction in school nurses as well as health visitors over the last decade has meant that some of the vital early face-to-face advice on nutrition to parents of young children has gone.
Worse, some of the excellent work done by chefs such as Jamie Oliver and by the campaign of Henry Dimbleby—both of whom over the years encouraged much healthier eating in schools—has been reduced if not lost. In fact, recent reports say that high-fat, high-carbohydrate foods such as the dreaded turkey twizzler are re-emerging on to school menus.
The second issue from these Benches is the decline in fitness of our primary school children. This has been a long-standing problem, but the sale of playing fields and focus in the curriculum on core subjects have all led to a reduction of time when children can exercise, take up sports and essentially get the habit early, which will also impact on their weight. This January, Sport England noted that children’s activity levels were down in 2019-20—pre pandemic—with only 44% of children and young people meeting the Chief Medical Officer’s guidelines on taking part in sport and physical activity for an average of 60 minutes a day. Now is the perfect time, as restrictions have been relaxed, to increase the time that young children can undertake sports and exercise. Can the Minister say what influence the Department of Health and Social Care has with the Secretary of State for Education in remedying this matter and what plans there are to fund more opportunities for young children to participate in sport and exercise?
Turning to the regulations, I note that this follows a decade of trying to encourage large supermarkets to reduce salt and sugar in their own direct products, as well as encouraging their suppliers to reformulate. However, not all of them have achieved enough, nor have they changed their attitudes towards promotions.
If the Grand Committee will permit me an anecdote, one of my adult children used to work as a buyer for a major supermarket, and its department had been asked to go back to suppliers to ask them to reduce sugar, salt and fat. My son was responsible for, among other things, dairy products. Most products and many suppliers were happy to work with the supermarket to achieve reductions, but both sides were completely stumped by one product: brandy butter. It has not just sugar and fat, but alcohol too. On this occasion, it was agreed there was very little they could achieve, other than to highlight its very red traffic light and recognise that it was a truly seasonal product that was not part of people’s everyday habits. But it is good they were thinking about it.
While the public health responsibility deal has improved matters a little bit, it is not nearly enough. One key area remains obvious. That is the influence of promotions targeted at children and their parents, both in store and on television. Other speakers have referred to multibuys, end-of-carousel promotions and queuing eye-catchers—far too often, junk food and sweets. While the public health responsibility deal has helped a bit in those larger supermarkets, it is certainly not enough, and it is good that healthier choices will be much more visible in shops and that buy one, get one free and three-for-two offers on high fat, sugar and salt products will be restricted.
On food scope, it was worrying to read in the past few days that a high level of juice in baby and toddler food, which has a very high fructose content, is not labelled as high sugar because the juice is natural and not added, processed sugar. Most parents of babies and small children believe that such products are not high in sugar. Surely, this needs to be added to the formulation list for HFSS products. Is the department looking at this?
It is right that environmental health food authorities should be responsible for enforcing this in localities, but I ask, as others have, whether there will be extra funding for environmental health to be able to carry this out. We need to remember that members of environmental health have many other responsibilities too, including the vital role during the pandemic of test and trace, working with local resilience forums. The Government cannot keep loading extra responsibilities on to beleaguered local authorities without funding them properly. Will there be funding for this for the enforcement bodies?
From these Benches, we regret that the food sector has not responded well enough to remove the need for this regulation, but we believe that the long-term health implications for our children are being damaged by current custom and practice. But this cannot be done without other actions too: funding more sport and exercise opportunities and funding enforcement are just two critical elements. The minimum of another five years to implementation, as outlined by the noble Lord, Lord Brooke of Alverthorpe, is too slow. Can the Minister please ensure that these changes are speeded up?
Baroness Merron (Lab)
My Lords, I appreciate the intent behind these regulations and thank the Minister for his introduction to them. I want to comment on the current situation and raise a number of questions following on from those that we have already heard, because I feel that it is the detail of the regulations that is wanting rather than what they are about.
To emphasise the points that have already been made in this debate and have been heard in your Lordships’ House on many occasions, the UK has among the highest childhood obesity rates in western Europe. One in four children is overweight or obese when starting primary school, and the number is one in three by the time a young person gets to secondary school. These children are obviously more likely to become obese adults—let us remind ourselves that, at present, one in four adults is obese—and therefore at greater risk of conditions such as diabetes, heart disease, fatty liver disease, cancers and mental ill-health. As we know, the situation is worse in poorer communities. Indeed, one in three adults in the most deprived areas is obese, compared with one in five in the least deprived—a clear inequality if ever we saw one. The discrepancy among children is even more alarming: more than twice as many children are obese in the most deprived communities as in the least, and that gap has nearly doubled under this Government.
There is no doubt that in-store promotions are incredibly effective in influencing what we buy. Research shows that we buy 20% more than we intended when faced by promotions. Cancer Research UK has shown that greater volumes of high fat, sugar and salt are likely to be purchased by those who are already overweight or living with obesity, so we see a correlation between promotions and obesity, and it is right that these regulations seek to tackle that. So, yes, it is right to take action to address this situation, not by limiting people’s freedom of choice but instead by supporting them to make healthier choices.
However, these regulations alone will not be enough, and it is this point that I want to emphasise to the Minister. We need a radical obesity strategy that goes much further, ensures that families are able to access healthy food and supported local leisure facilities, and ensures that poverty can be tackled. Without that, there will be no levelling up. All we will see is a continuing widening of the already considerable gap between those who have the means to manage their weight and those who do not.
Lord Kamall (Con)
I start by thanking noble Lords for their contributions to today’s debate. I shall try to turn to some of the questions from noble Lords and to answer as many as possible in the next three hours, if noble Lords will be patient with me. [Laughter.] Seriously, if I do not touch on a particular question, please write to me to follow up, particularly on some of the more technical questions.
I start with some of the questions from the noble Lord, Lord Brooke. He asked about the scope. Stores smaller than 185.8 square metres or 2,000 square feet—if you are wondering why such an unround number was chosen in metric—and specialist retailers that sell one type of food product category, such as chocolatiers or sweet shops, will be exempt from location restrictions but will need to adhere to the volume price restrictions. The policy will come into force in October 2022. The noble Lord referred to issues that I am always interested in, which are the evidence, as well as the impact, and how we look at the unintended consequences of any such moves. There will be a review within three—
Lord Kamall (Con)
The policy will be reviewed within three to five years of it coming into force. I reassure the noble Lord that the intention is that the policy will come into force in October 2022. However, as the noble Lord and I have discussed in the past, I am always concerned about unintended consequences and evidence to see what has worked and what has not. In many ways, I am a fan of the discovery process. We do not have complete knowledge—in fact we have incomplete knowledge—and all we can do is trial and see what works and use the best evidence that we can to assess.
Part of this review of the regulatory framework provisions of the restrictions will consider whether penalties under the Regulatory and Enforcement Sanctions Act 2008 have been implemented effectively and achieve their ambitions. We will continue to keep the policy under review to ensure that it is both impactful and proportionate. I am sure noble Lords will agree that it is not sufficient just to pass a piece of legislation and hope it does its job. In fact, as I think many noble Lords would acknowledge, this in itself is not enough to tackle obesity. It has to be a multi-angled view with many different approaches. Some will work, some will not, but we have to learn from what works and make sure that we are not driving consumers into unintended consequences and leading them to worse health outcomes.
We hope that this strategy that we published in 2020 will be world leading. I think the noble Lord, Lord Brooke, mentioned Sir Keith Mills and his programme. This shows that it is not just this piece of legislation; it is a multichannel approach, if you like, including incentivising people to have healthier lifestyles —monitoring their steps and other exercise functions. Anyone who has looked at successful and unsuccessful diets will recognise the fact that it is not just about reducing what you take in; it is also about burning off those calories. We have to get the right balance. Each individual will have different BMIs and different physiologies and different strategies will work for different individuals.
In terms of the businesses that these regulations will impact, the location and volume restrictions apply only to medium and large businesses in England and around 24% of stores are in scope of the volume price restrictions. Given the size threshold for stores subject to location restrictions, these apply to approximately 16% of stores in England. Some 94% of estimated food retail revenue falls under the volume restrictions, while 84% falls under location restrictions. This means that these restrictions offer considerable potential, if done correctly, while ensuring that small businesses are not disproportionately impacted by the changes. I acknowledge that many noble Lords were concerned about the cost for both large and small businesses.
The original timescale was to be April 2022, but having considered feedback from the industry, we have made the decision to extend the implementation to October 2022. I am well aware that some in the industry are asking for a further extension and, as noble Lords can recognise from the tone of the debate today, some are in favour and some are against and the Government are trying to get the right balance. The Government want to bring in these measures so we can start analysing whether they work. We are also very mindful of the fact that it falls on industry to implement them.
The other issue raised was about smaller stores and what are called symbol groups, which, as noble Lords may understand, are smaller retailers that come under a wider brand. If we excluded symbol groups in their entirety, that would take away some of the health benefits of the policy. Franchises and symbol groups make up about 60% of those in scope of the volume price promotions and 14% of the location restrictions. Approximately only 12% of symbol group stores are over 2,000 square feet, therefore the vast majority of these stores will be exempt from the location restrictions. I hope noble Lords understand the point about the cost falling particularly disproportionately on smaller stores.
Baroness Neville-Rolfe (Con)
It would be very helpful if, in responding to those questions and proposing the guidance, my noble friend the Minister could make a copy available, perhaps in the Library, to those of us who are interested in understanding because I do not think that this is the end of the era on this issue; I think we will revisit it again and again in various different ways.
Lord Kamall (Con)
My noble friend makes a very reasonable demand that is difficult for me to refuse. Let me put it this way: I hope that I have not caused any shock waves, as it were.
There has been an impact assessment, which shows that the location restrictions over the 25-year appraisal period are expected to bring health benefits of more than £57 billion and provide NHS savings of more than £4 billion. The volume price restrictions are expected to accrue health benefits of more than £2 billion and provide NHS savings of £180 million. We recognise that there will be costs to businesses; once again, this is all part of that difficult balance and debate. A phrase I have often heard is, “Do not let perfection be the enemy of progress”. We want to try as hard as possible to get this right. From the consultation that has been going on, we are very aware that this will have an impact on a number of businesses but, at the same time, there is lots of pressure, as noble Lords will have heard today, just to get on with it.
Baroness Neville-Rolfe (Con)
I am sorry to interrupt again, but £57 billion is a much bigger figure than I have seen anywhere; £3 billion, perhaps separately, I could understand. It is really helpful to have the impact assessment but it is difficult to understand what the benefits and costs are, which we need to understand to give my noble friend the Minister the full support that he requires.
Lord Kamall (Con)
Once again, I thank my noble friend for making that request. I always make it clear that it is important that we publish as much evidence as possible and let it be challenged; that is part of a healthy debate. If things do not work as intended, we should see what works and what does not. I am always very sensitive when someone says, “the evidence suggests”. We need to have that challenge but also make sure that we know what works. At the end of the day, we all want to see less obesity across our country, so surely it is important that we make sure that the evidence is there. Where something does not work, we will just have to try other ways.
On compliance, it is for local authorities to decide how best to enforce the requirements. Where an enforcement officer suspects that HFSS food or drinks may be inappropriately promoted, they should request further information to verify. If the product is in scope and has been promoted contrary to the law, an enforcement officer will consider what action should be taken.
Baroness Merron (Lab)
I thank the Minister; it is generous of him to give way. I would be very interested in how he sees the greater responsibility on local authorities. Picking up my question again, does he feel that local authorities are resourced suitably? Can they expect some recognition of this new and extremely important role, because the regulations require their co-operation too?
Lord Kamall (Con)
I thank the noble Baroness for that question. The Government are committed to ensuring that enforcement is proportionate and fair, and we intend to support local authorities and the judicial system on additional costs incurred as a result of enforcing the policy. Up front, I cannot say what those costs will be, but we want to understand what they will be to help enforcement.
I was asked whether we had watered down the policies for some products. We have excluded some products that are not among the highest sugar or calorie contributors to children’s diets or are not heavily promoted, but we will continue to keep the policy under review.
The noble Baroness, Lady Brinton, asked about weight management and other ways of tackling weight issues, including exercise. In March 2021, we announced an extra £100 million for healthy weight programmes to support children, adults and families in achieving and maintaining a healthy weight.
On infant foods, we will shortly consult on proposals to improve the marketing and labelling of commercial food and drink products for infants and young children. I acknowledge many of the concerns expressed by the noble Baroness, Lady Brinton.
The noble Baroness, Lady Merron, asked why we are using secondary legislation. The different legislative approaches being pursued reflect the current legislative framework and implementation routes available to the Government. For the promotion restrictions, we used existing powers in the Food Safety Act 1990 to lay secondary legislation before Parliament in July 2021. The statutory instrument has been subject to the affirmative parliamentary procedure.
On how we look at issues of inequality, noble Lords made a very fair point. Perhaps I may be so bold as to suggest that one issue for people I talk to in many of the communities that we are supposed to be reaching out to is that, for far too long, the public health industry has been dominated by white middle-class people who feel they know better than immigrant and working-class communities. It is really important that we understand those communities. As someone who comes one of the communities that have been patronised, I recognise that we have to make sure that we work with them and do not just sit in a place like this and assume that we know better. It is important that we really understand them. What is really good about the Office for Health Improvement and Disparities is that “disparities” are on the label, on the tin, which means that we have to look at how we address them.
There were some questions about why smaller businesses are exempt. I hope that I have answered them.
On people not being able to afford to eat a healthy diet, anyone who has watched daytime TV will know that some of those programmes can show you how to cook a meal very quickly and much more cheaply than is the case with many of the convenience foods that you can buy. The problem is how we translate that from the TV and entertainment to people’s lives in reality. In many ways, it means understanding families, where the decisions are made and what they have access to in many of their communities. Anyone who has been to many of the immigrant communities, for example, will know that there are plenty of shops that sell and openly display fresh food, but how do we make sure that we translate that into healthy diets?
On their own, these regulations will not be enough. We also have to look at how we translate all this into understanding people’s lives right at the family and the community level. It is our goal to improve children’s health and to reduce obesity. The shopping environment plays a vital role in the way products are marketed to us—for example, the pumping out of the smell of fresh bread from bakeries. We know that marketing people are experts in understanding consumer behaviours, with factors such as the location of products at the end of aisles affecting what we buy. The Government are committed to getting the right balance between stopping bad practice and working constructively with industry. We also want to evaluate the evidence of the restrictions once the policy is implemented.
We believe that retailers can play a vital role in creating a healthier food environment that does not promote the overconsumption of less healthy products. The Government hope that these regulations will enable us to achieve a healthier food environment and make progress to halving childhood obesity by 2030, and allow us all to live longer lives in good health. I commend the regulations to the Committee.