Question to the Department of Health and Social Care:

To ask the Secretary of State for Health and Social Care, with reference to the high fat, sugar and salt regulations, where liability will sit for products on online delivery platforms.

Retailers who are qualifying businesses are responsible for ensuring any contracts in place with an online delivery platform make clear that the law must be followed. They must also ensure that the products they sell are compliant with the location and price promotion restrictions on these types of platforms, where they remain responsible for this food being offered for sale.

Although retailers are responsible for the sale of their products online, online aggregators may also have such a responsibility. This could arise for example, when aggregators advertise, promote or facilitate the sale of products on behalf of a trader. A court will consider each case on its facts when considering if the actions of online delivery platforms and aggregators have led or contributed to a breach of the Regulations.

In areas where both the new online advertising and promotions restrictions may overlap, for example if a company has paid for advertising of an identifiable high fat, salt or sugar (HFSS) product displayed in an area restricted under the promotions regulations (such as on a retail home page, check-out page or page not intentionally opened by the consumer), the retailer or aggregator will be liable for the breach of promotions Regulations. It is also possible that the frontline regulator of the advertising restrictions may also find the advertiser liable in breach of advertising Regulations. However, as liability differs between the restrictions, we do not anticipate a scenario where an individual will be sanctioned twice for a single breach.

The promotion Regulations act independently of the existing CAP codes. If a piece of content is in scope of the promotions restrictions and potentially in breach of the UK Advertising Codes and this comes to the attention of the Advertising Standards Authority then it will refer the matter to the relevant enforcement authorities. Compliance with the promotions Regulations takes precedence over the non-statutory UK Advertising Codes.