The recent COVID-19 pandemic has brought into sharp focus the impact obesity can have on individuals’ health leading to increased risks of developing type 2 diabetes, heart disease, fatty liver disease and a number of cancers. The COVID-19 outbreak has been one of the biggest public health challenges ever faced by the UK and was a catalyst for the Government to re-doubling its efforts to reduce obesity levels in the UK by introducing mandatory calorie labelling. Following consultation, the Calorie Labelling (Out of Home Sector) (England) Regulations 2021 (“the Regulations”) have now been enacted and will come into force in England on 6 April 2022. The Regulations require qualifying businesses which sell food for immediate consumption or as take away food to provide information relating to the energy content of the food sold in kilocalories. In this article, I discuss which businesses are caught by the Regulations and what those businesses will have to do in order to ensure compliance.
What is a qualifying business?
A business will be a qualifying business during a financial year if:
On the first day of that financial year the business has 250 or more employees; and
The business is not an exempt business during that financial year.
What is an exempt business?
An exempt business is one of the following institutions:
An educational institution (other than an institution providing education to pupils below the age of 18);
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; or
A care home or other institution providing social care,
unless any of the catering services at any of the institutions in question are provided by another business having 250 or more employees. A business that is carried on pursuant to a franchise agreement will be treated as part of the business of the franchisor and not as a separate business carried on by the franchisee.
Which foods will the Regulations apply to?
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; and
(c) Is not exempt food.
Food will be considered to be in a form which is suitable for immediate consumption if it satisfies the requirements of Condition A or Condition B as follows:
A This is food which is offered for sale at a café, restaurant or other premises selling food for consumption on the premises.
B This is food which is offered for sale for consumption off the premises and does not require any preparation by the consumer before it is consumed. For the purposes of the Regulations “preparation” includes peeling, hulling or washing, cooking, thawing frozen food and heating or re-heating pre-cooked food.
Which foods are exempt?
Exempt foods are:
Condiments provided to be added by a consumer to their food (but not including condiments forming part of the food served to the consumer);
Food which is included on a menu for less than (i) 30 consecutive days, and (ii) a total of 30 days in any calendar year;
Drinks containing more than 1.2% of volume by alcohol;
Food provided, otherwise than for payment, to patients at a hospital or other medical establishment or to residents or other service users at a care home or other institution providing social care;
Food provided at an education institution to pupils below the age of 18;
Food which is not included on a business’ menu or otherwise offered by that business, and is, at the express request of a consumer (i) made available to the consumer, or (ii) prepared by the business for the consumer differently to the way that food is usually prepared by the business;
Fresh fruit or vegetables for consumption off the premises provided that they are not (i) added to other food, or (ii) offered for sale as an ingredient in food consisting of more than one ingredient;
Unprocessed products for consumption off the premises consisting of a single ingredient which do not come within the paragraph of fresh fruit or vegetables as above;
Loaves of bread or baguettes for consumption off the premises;
Fish, meat or cheese for consumption off the premises provided that they are not (i) added to other food or, (ii) offered for sale as an ingredient in food consisting of more than one ingredient;
Food provided by a charity in the course of its charitable activities (i) free, or for a price which is less than the cost of providing that food or, (ii) offered for sale by or on behalf of the charity at a single event to raise funds for its charitable activities;
Food served by the armed forces to a member of the armed forces otherwise than at a military canteen; and
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.
How must the information be displayed?
A qualifying business must display the information referred to above at the point at which the consumer chooses what food to buy.
The information to be displayed must be:
(a) 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 if the food is pre-packed for direct sale to the consumer;
(b) On the menu next to the description or the price of the food concerned if the food is chosen from a menu or in a position which ensures it can be seen and read by a person looking at the board if the menu is displayed on a board;
(c) On a label identifying the food concerned next to, or in close proximity to, each item of food which may be chosen and displayed in a position which ensures the label can be read by a person choosing that food if food is chosen from items on display; or
(d) As part of the description of each item of food which is offered for sale on the page of the website or mobile application where the consumer chooses what food to buy if the food is offered for sale on a website or through a mobile application.
What information must be displayed?
The information which must be displayed is as follows:
The energy content in kilocalories, followed by the letters “kcal” (i) of a single portion of the food or, (ii) if the item is for consumption by more than one person, the whole item;
The size of the portion to which the above information relates, or the number of people for whom the item has been prepared; and
The statement that “adults need around 2000 kcal a day” (save for any menu or part of a menu including food for children).
Each food authority is responsible for enforcement of the Regulations within their areas. If an authorised officer has reasonable grounds for believing that a qualifying business is failing to comply with the Regulations then initially he may serve an improvement notice upon the business. The notice is served on the proprietor of the business. It sets out the grounds where the business is failing to comply and specifies the measures which, in the officer’s opinion, the proprietor of the business must take in order to comply. It also provides a notice period by which the proprietor is required to undertake those measures, being not less than 14 days. Any person who fails to comply with the improvement notice will be guilty of an offence punishable by way of a fixed monetary notice or criminal prosecution.
Following its consultation, the Government committed to review the policy within five years of its implementation and will consider at that stage whether or not to extend the Regulations to include micro, small and medium businesses. In the meantime, these businesses are encouraged to provide calorie label information on a voluntary basis.
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.