In 2018 the Government consulted on calorie labelling for food and drink served outside of the home. Following this the Government has introduced legislation to implement mandatory calorie labelling among large food businesses and despite the best efforts of UK Hospitality to defer the implementation date The Calorie Labelling (Out of Home Sector) (England) Regulations 2021 (“the Regulations”) now look set to come into force in England next week on 6 April 2021. In this briefing note, we explore the Regulations and set out some of the more salient points and matters which businesses in the leisure and hospitality sector will need to consider when preparing for the introduction of the regulations.
To whom do the Regulations apply?
The Regulations apply to all qualifying businesses in England.
A business will be a qualifying business during a financial year if:
(a) On the first day of that financial year the business has 250 or more employees; and
(b) The business is not an exempt business during that financial year.
A business will be exempt if it a canteen at a work-place, the purpose of which is to provide food to employees in that work-place, a military establishment or criminal justice accommodation, a hospital or other medical institution, a care home or other institution providing social care unless any catering services provided at the institutions in question are provided by another business with 250 or more employees.
The types of businesses to which the Regulations will apply include, but are not limited to:
restaurants, fast food outlets, cafes, pubs and supermarkets;
home delivery services and third party apps selling food within the scope of the Regulations;
cafes and takeaways within larger shops and venues such as supermarkets or department stores and entertainment venues such as cinemas;
specialist food stores, delicatessens, sweet shops and bakeries;
contract catering, for example at events and canteens; and
domestic transport businesses within the United Kingdom.
The Regulations do not apply to certain establishments when food is provided “in-house” but the food at that establishment is provided by another qualifying business (such as a contract caterer) the information must be displayed. This rule will apply to the following establishments:
an educational institution for those over 18 years old;
a military establishment;
criminal justice accommodation;
a hospital or other medical institution;
a care home or other institution providing social care; and
a canteen at a work-place providing food to employees.
Food to which the Regulations apply?
The Regulations apply to food which is (a) offered for sale in a form which is suitable for immediate consumption, (b) is not prepacked food (i.e. not food packed at a customer’s request at the premises where it was purchased or food which is prepacked for direct sale to a consumer) and (c) is not exempt food.
Food is defined as meaning any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans. It includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. However, it does not include feed, live animals unless they are prepared for placing on the market for human consumption, plants prior to harvesting and other products such as cosmetics or tobacco.
Food is considered to be in a form which is suitable for immediate consumption if it is food offered for sale at a café, restaurant or other premises selling food for consumption on the premises or is offered for sale by a business for consumption off the premises and does not require any preparation by the consumer before it is eaten.
For the purposes of the Regulations, preparation includes peeling, hulling or washing, cooking, thawing frozen food and heating or heating pre-cooked food.
The Regulations contain a detailed list of food which is considered as being “exempt food” for the purposes of the Regulations. Examples include:
condiments provided to be added by a consumer to their food (but not condiments forming part of the food served to the consumer);
food which is not included on the menu or otherwise offered for sale and which is expressly requested by the consumer to be made available or prepared differently to the way it is usually prepared;
drinks containing more than 1.3% by volume of alcohol;
food provided by a charity, in the course of its charitable activities, free, or for a price which is less than the cost of providing that food, or offered for sale by or on behalf of a charity, at a single event, to raise funds for its charitable activities;
food which is served by the armed forces to a member of the armed forces otherwise than at a military canteen, the purpose of which is to provide food to members of the armed forces stationed at that establishment;
food which is provided at an educational establishment for pupils below the age of 18 years old;
food provided (not for payment) to patients at a hospital or other medical establishment, or to residents or a care home or other social care institution;
food served on an international aircraft, train or ferry if it is travelling to or from a country which is not part of the United Kingdom;
loaves of bread or baguettes;
fresh fruit or vegetables including potatoes (which have not been peeled, cut or similarly treated) if they are offered for sale by a business for consumption off the premises and are not added to other food or offered for sale as an ingredient in food consisting of more than one ingredient; and
fish, meat or cheese provided it is not added to other food or offered for sale as an ingredient in food consisting of more than one ingredient.
What information must be displayed?
The information which must be displayed by a qualifying business in relation to food to which the Regulations apply is:
(i) the energy content in kilocalories of a single portion of the food or if the item purchased by the customer has been prepared by the business for consumption by more than one person, of the whole item;
(ii) the size of the portion to which the information relates or the number of people for whom the item has been prepared; and
(iii) the statement “that adults need around 2000 kcal a day”, save in a menu which only includes food for children or on a page in a menu if the page only includes food for children.
The information must be displayed at the point at which the consumer chooses what food to buy. Where food is chosen from a menu, the information must be displayed on the menu next to the description or the price of the food concerned.
Where food is chosen from items on display, the information must be displayed on a label identifying the food concerned next to, or in close proximity to, each item of food which may be chosen, displayed in a position which ensures that the label can be read by a person choosing that food.
Where food is prepacked for direct sale to the consumer, the information should be included on the packaging in a position and in a type and style of lettering, colour, size and background which ensures the information can be seen and read by a person choosing that food.
The statement must be displayed where food is chosen from a menu once on every page in the menu (and where the menu is a double-sided card, on each side of the card) or where the menu is displayed on a board, in a position on the board which ensures that the statement can be seen and read by a person looking at the board.
A display of the information and statement will comply with the Regulations if it is easily visible, clearly legible and not in any way hidden or obscured by any other written or pictorial matter or any other intervening material.
The Regulations do, however, permit qualifying businesses to provide a menu without the required information at the express request of the customer provided that a menu with the required information is offered to the customer by default.
Food offered for sale on a website or through a mobile application
The Regulations extend to food which is offered for sale in England on a website or through a mobile application.
The business responsible for the website or mobile application (“the remote provider” must ensure that the information is displayed (i) as part of the description of each item of food which is offered for sale except for food which is provided by a business which is not a qualifying business, (ii) be easily visible, clearly legible and not in any way hidden or obscured by any other written or pictorial matter or any other intervening material and (iii) on the page of the website or mobile application where the consumer chooses what food to buy.
If the food offered for sale on that website or through that mobile application is provided by a qualifying business other than the remote provider, the qualifying business must give the remote provider the information for display on the website or mobile application.
Enforcement of the Regulations will be conducted by local authorities in their respective areas. If an authorised officer of a local authority has reasonable grounds for believing that a qualifying business is failing to comply with the Regulations, he may serve an improvement notice on the proprietor of the qualifying business.
The improvement notice should state the officer’s grounds for believing that the qualifying business is failing to comply with the Regulations, specify the matters which constitute the qualifying business’ failure so to comply, specify the measures which, in the officer’s opinion, the proprietor must now take in order to secure compliance and provide a date by which the proprietor is required to take those measures, such date being not less than 14 days.
Any person who fails to comply with an improvement notice is guilty of an offence which may give rise to the issue of a fixed monetary penalty notice of £2,500.00 and/or criminal proceedings.
Whilst the Regulations are quite detailed as regards the scope of the food to which they apply and how the information should be displayed for most businesses doing so for items for sale which be relatively straight forward. However, for some items, such as “build your own”, coffee menu boards or meals deals and other customisable items there may be a lot of potential combinations the customer could select. Businesses will therefore need to be careful to ensure that the information as required is correctly displayed so as to avoid falling foul of the Regulations.
Lastly, it is important to note that the Regulations also provide for a review every five years and whilst at the moment they only apply to businesses with 250 or more employees, the Government is encouraging all food businesses to voluntarily adopt calorie labelling and it is widely considered that they will be extended to cover all (or at least more) businesses in five years’ time. All businesses would be well advised therefore to give consideration to the Regulations now and put procedures in place to ensure compliance with the same sooner rather than later.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.