Food (Promotion and Placement) (England) (Amendment) Regulations 2022

Baroness Merron Excerpts

Tuesday 6th December 2022 Lords Chamber

Moved by

[Baroness Merron]

That this House regrets that the Food (Promotion and Placement) (England) (Amendment) Regulations 2022 (SI 2022/1007) do not justify the delay in banning the promotion of high fat, sugar and salt (HFSS) products; and notes the evidence from the His Majesty’s Government’s own Impact Assessment that the ban would have substantial monetised benefits.

Relevant document: 15th Report of the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[Baroness Merron (Lab)]

My Lords, the regret Motion standing in my name, and also that standing in the name of the noble Baroness, Lady Walmsley, are critical of the Government’s handling of the Food (Promotion and Placement) (England) (Amendment) Regulations 2022. These regulations introduce measures designed to limit the ability of retailers to promote the purchase of products classified as high in fat, salt and sugar; the intention of the regulations was to help address the high prevalence of obesity in this country.

It is worth reflecting that on 29 September 2022, just a day before the regulations were due to come into effect, the Government of the then Prime Minister Liz Truss introduced these regulations to facilitate a delay to the “multi-buy” components of the regulations—multi-buy promotions are the “buy one, get one free” on products high in fat, salt or sugar. This was passed via a negative procedure without debate, whilst the location-based restrictions came into effect as planned on 1 October this year. That brought into play restrictions on the placement of unhealthier food products near to supermarket checkouts at aisle ends and store entrances.

The motivation, if I can put it that way, for this regret Motion is that the House of Lords Secondary Legislation Scrutiny Committee strongly criticised the Government’s handling of this issue, particularly with regard to the Government’s justification for the delay, and the lack of parliamentary scrutiny for the amendment. It is the report of the committee that has formed the basis for these regret Motions, and I certainly do agree with the observations that the committee made.

Let me summarise for the purposes of your Lordships’ House the concerns encapsulated in this regret Motion. First, the Government have not brought forward sufficient evidence to justify their decision. Their stated rationale for the delay was the “global economic situation”. I suggest to the Minister that this is a somewhat cursory comment; one sentence is not enough. It is quite unclear what the Government feel the “unprecedented global economic situation” is. Are we referring to the post-pandemic situation, the war in Ukraine, high gas prices or something else? In other words, this is hardly a full description that one might expect. The Secondary Legislation Scrutiny Committee concluded that there was insufficient

“justification for delaying the start of a measure intended, over time, to accumulate public health benefits including significant savings to the NHS.”

The Government’s decision to take this still further goes directly against their own impact assessment for these policies, which states:

“Although price promotions appear to be mechanisms to help consumers save money, data shows that they increase consumer spending by encouraging people to buy more than they intended to buy in the first place.”


The impact assessment further states that

“the monetised benefits greatly outweigh the costs on a ratio of around 14:1”.

The Secondary Legislation Scrutiny Committee then outlined a number of procedural criticisms of the Government, the most significant of which include that appropriate parliamentary time was not given for scrutiny of the legislation. After all, as I have already mentioned, the statutory instrument was introduced just one day before the regulations were due to come into effect, without the standard 21-day period normally expected to allow for scrutiny by Parliament through the negative secondary legislative procedure. Of course, the statutory instrument was also laid without a full analysis of the public consultation being published, making it impossible to assess the views of the sectors affected by this decision.

There are a few questions arising from this that I invite the Minister to address when he replies. Why were the Government not able to bring forward sufficient evidence to justify their decision? Why do their claims about the impact of this policy on the cost of living contradict their own evidence presented in the impact assessment? Could the Minister say whether the consultation responses will be published, even at this stage?

I also seek reassurance from the Minister that similar procedural issues will not arise with future legislation. I make this point in particular reference to the fact that the Government will be bringing forward secondary legislation to delay the upcoming restrictions on the advertising of products high in fat, sugar and salt on TV and online, before they are due to come into effect on 1 January. I hope that we will not see a repeat of the failure to provide the requisite amount of time to allow for parliamentary scrutiny of legislation when we come to that statutory instrument. There should not be an attempt to bypass Parliament by not giving it the opportunity to discuss and examine the regulations.

This debate would not have been needed had the Government explained everything clearly in their Explanatory Memorandum, and had they allowed Parliament the opportunity to scrutinise, as is normally required. I say to the Minister that the Explanatory Memorandum is important. It is not just about how parliamentarians understand regulations; it is also about the public, industry and third-sector stakeholders. We all look to understand regulations by these means. I hope the Minister will take that point away and emphasise to the department the importance of providing the right supporting materials for often complex—and sometimes highly challenging—government policies. With that, I beg to move.

[Baroness Walmsley (LD)]

My Lords, my regret Motion regrets these delay regulations because they damage public health and are against the Government’s previously stated policy. When the legislation for the ban, which these regulations delay, went through your Lordships’ House in the Health and Care Act 2022, it was supported enthusiastically from these Benches. We are keen on measures to prevent ill health, save patients distress and save the NHS money, and the evidence provided by the Government in the impact statement at the time was compelling.

However, during Report, the Government introduced an amendment to allow them to delay the implementation of this measure and others in the Bill. I distinctly recall being extremely sceptical and rather suspicious about this, because of the robust opposition to these and other measures from some Members on the Government’s own Back Benches and certain lobby groups. I felt that the Government were trying to keep their troops happy and ditch the measures by stealth.

In response to my concerns, I clearly remember the noble Baroness, Lady Penn, who was leading on this amendment for the Government, assuring me that the delay power was needed only in case of a very short delay being necessary as a result of consultations on implementation. I was not convinced then and I am not convinced now. I believe that the delay power was put into the Act at the behest of lobbyists who have their own interests at heart, rather than the health of the nation, in order to allow the measures to be kicked down the road indefinitely and quietly buried.

Last week, the Government announced £20 million of funding for research to develop new medicines and digital tools to help people shed 20% of their weight. Although this will be welcome to those living with obesity, it is closing the door after the horse has bolted. In addition to spending all this money on helping people lose weight, why not promptly implement some of the measures already in legislation to help prevent obesity in the first place? By its own figures, obesity costs the NHS £6 billion annually, and this is set to rise to over £9.7 billion each year by 2050 unless effective preventive measures are taken.

As the noble Baroness, Lady Merron, said, in its 15th report, the Secondary Legislation Scrutiny Committee criticised the Government robustly on this regulation. It reminded the House that, in the impact assessment to the original instrument setting up the ban, the Government said that

“the monetised benefits greatly outweigh the costs on a ratio of around 14:1”.

That is pretty good value. Of course, the costs would have been borne by the manufacturers, retailers and advertisers of these unhealthy foods, and the benefits would have been felt by patients and the NHS, but clearly that did not suit those who lobbied the Government to introduce this delay.

What is the Government’s justification for it? The unprecedented global economic situation. What I would like to ask the Minister to explain to the House is this: whose pocket do they think they are saving by delaying the ban on this kind of price promotion? Is it that of the shoppers who are trying their hardest to put food on the table after they have paid the vast increases in their energy bills and mortgages thanks to the Government’s economic mismanagement? Or is it that of the large, profitable organisations that make, sell and advertise these foods? I am not convinced that the global economic situation is going to cause these companies to go bust, but I am convinced that continuing to allow this kind of promotion will do harm to the average shopper. Why do I say that? For the very simple reason that the Government themselves, in their own impact statement, said:

“Although price promotions appear to be mechanisms to help consumers save money, data shows that they increase consumer spending by encouraging people to buy more than they intended to buy”.


So now we know: the big manufacturers, retailers and advertisers of unhealthy foods have won, and the patients and shoppers have lost.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, I thank the Minister for his response. I particularly appreciate his acknowledgement of the criticism that the Secondary Legislation Scrutiny Committee made about process. I am sure that all of us in your Lordships’ House will very much welcome his assurance—I do not wish to put words into his mouth—that we will not see a repeat of that on his watch. That is very reassuring.

However, it is interesting that the Minister referred to this as just delay to take some time to adjust. I am not sure who we are referring to on taking the time to adjust, particularly in view of the fact that the Minister has informed your Lordships’ House that some supermarkets have already come forward to implement these measures. They clearly did not need time to adjust. I remain somewhat mystified by the logic put forward today, particularly as the points made by noble Lords very much echoed those raised in the passage of the Health and Care Act and have been repeated many times in this Chamber—we have great concerns about the failure to take action that we know will make a change because the Government’s own documentation says that it will.

I welcome the Minister’s concern that the processes were not followed. I very much hope that we will not have to repeat such a regret Motion. However, I have to part company on what I felt was a response that said that it is all in hand and this is merely a delay for a time to adjust—although we do not even know for whom. It is regrettable that we are in this position. However, on the basis that we are there, I beg leave to withdraw.

Motion withdrawn.