How will the HFSS rules be enforced? Collaboratively, retailers are assured

While most of the major supermarkets seem to have made the necessary changes in time for start of the new rules, the same cannot be said for hundreds of convenience stores up and down the country.

Nor is it entirely clear that all the changes that have been made are fully compliant with the law. So what will the repercussions be for those not abiding by it?

The enforcement of the new rules is a matter for each local authority’s Trading Standards and environmental health teams, who, according to the Chartered Trading Standards Institute (CTSI), will take a supportive approach to their activity.

As CTSI lead officer for food David Pickering puts it, visiting Trading Standards will at first be “collaborative” but “then tough if compliance is not actively sought by the business”.

That approach has come at the behest of government who advise officers be “pragmatic” with a “focus on supporting compliance rather than penalising non-compliance”. Discussion before penalty is being strongly encouraged.

However, given the limited resource of Trading Standards teams and their other priorities, which cover hundreds of unrelated items of legislation, policing of the regulations is likely to be minimal at best.

The government has provided less than £400,000 for enforcement activity in England over three years available, amounting to just a few hundred pounds each year per local authority.

“It seems unlikely that we will see large numbers of inspectors visiting qualifying businesses, tape measures in hand, looking to ascertain whether product placement rules are being adhered to,” says Anna Naylor, principal associate at legal firm Weightmans.

What’s more, the restrictions are complex. There is a lot for resource-stricken enforcement teams to get their heads around. “There are, for example, mathematical formulas to determine how closely stores are able to site HFSS products to their entrances,” Naylor says. “A concern is the complexity of the new rules and the time and effort it will take, in some cases, to determine whether a retailer has fallen foul of the legislation.”

But that’s not to say enforcement officers are toothless tigers – just overstretched ones. Before any compliance efforts begin, it is down to officers to determine whether a business is within scope of the regulations in the first place. This is no insignificant task, as they’ll need to know a retailer’s staff count and square footage. It is then at their discretion whether to go any further.

“In deciding whether to investigate a matter, or investigate it further, factors they may take into account include information from the retailer, or evidence obtained from wholesalers or manufacturers on the content of food products,” the government guidance notes.

But if a business is found to be in breach of the rules, and makes no effort to comply, officers can serve an improvement notice to the proprietor. These notices must include the “matters which constitute the failure to comply” as well as giving a “time period within which measures must be taken to secure compliance”.

The length of this period “will be for enforcement authorities to consider on a case-by-case basis” the regulations note. And they should be seen as “a roadmap to compliance” more than a warning.

Appeals to these notices can be made to a Magistrate’s Court, which will ‘stop the clock’ for the time given to comply until the appeal has been heard.

Fail to comply with an improvement notice, though, and the store proprietor may be guilty of an offence. In which case they can be criminally prosecuted, resulting in an unlimited fine per offence or more likely, served with a fixed monetary penalty of £2,500 (halved if paid within 28 days).

“Each case will be assessed on its own merits,” the government says. “For example, an enforcement officer may consider a prosecution is more appropriate if they consider that the business has committed a serious, deliberate or repeated breach of the regulations.”

Anyone receiving a fixed penalty notice can appeal it via a First-tier Tribunal in the General Regulatory Chamber. The grounds for appeal are that the decision to fine was based on an error of fact, wrong in law, unreasonable or “wrong for any other reason”. If the fixed penalty isn’t appealed and is not paid within 56 days of the final notice, the amount payable is increased by 50%.

“It will be interesting to see whether there are any early legal challenges brought by businesses who are found to be in breach of the rules,” Naylor says.

“It is possible that we will see some appeals in the coming months from retailers who, in the face of limited government guidance, have taken a different view to the relevant local authority about how the legislation applies to their business,” she adds.

But it is unlikely to ever get that far. As Pickering reiterates: “Enforcement will be graduated and proportionate. Businesses will be supported to comply.”