In 2010, the UK was classed as the ‘fat man of Europe’, topping the list of 30 other European countries in an international review as having one of the world’s fastest growing rates of obesity. Fast forward to 2022 and the numbers have not improved.
In fact, in 2019-2020, there were over one million hospital admissions where obesity was the primary or secondary cause. This is an increase of 17% on 2018-2019 where there were approximately 876,000 obesity related admissions. Almost two thirds (63%) of adults in England are overweight or living with obesity and it is costing the NHS a staggering £6.1 billion each year. This issue has been exacerbated by the Covid-19 pandemic and its ensuing lockdowns which have caused an increase in the number of people suffering from eating disorders.
In order to tackle the growing health concerns of the nation, the government has implemented the Calorie Labelling (Out of Home Sector) (England) Regulations 2021 which require calorie information to be displayed on menus and food labels and came into force on 6 April 2022.
The regulations apply to all qualifying businesses in England and cover a wide range that encompasses restaurants, cafes, supermarkets, takeaways, and restaurants and cafes that are situated within larger stores or premises (such as cinemas). This means that, if a business on the first day of the financial year has 250 or more employees and it is not exempt, it will be caught by the new rules. Exempt businesses include work-place canteens, military establishments, hospitals, care homes and criminal justice accommodation, to name but a few.
Food that is caught by the new rules includes that which is offered for sale in a form which is suitable for immediate consumption, is not pre-packed (ie 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 is not exempt food.
Exempt food also includes condiments provided to be added by a consumer to their food, drinks containing more than 1.3% by volume of alcohol (ABV) and fresh fruit and vegetables. Potatoes are included 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 for food consisting of more than one ingredient, and fish, meat or cheese, provided it is not added to other food.
A range of information needs to be displayed on food to help consumers make more informed food choices. This information includes the energy content in kilocalories of a single portion of the food, the size of portion to which the information relates and a statement that adults need around 2000 kcal per day.
Furthermore, the information must be available at the point at which a consumer decides to purchase it (for example, a menu or the outer packaging), and the information extends to purchasing food online. Information in those instances must be included in the description of the food so that it is readily available for consumers to view at the point of purchase.
The regulations are enforced by local authorities and the first step is for a local authority to have a conversation with the offending business regarding the non-compliance. If the issue persists, a local authority can issue an improvement notice. Failure to comply with such a notice could result in a fine of up to £2,500.
In a recent interview, co-founder of Wahaca, Mark Selby, notes that there are undoubtedly benefits to the inclusion of the additional information. However, he notes that the issue is focused on calorie counting and ignores other key information such as overall nutritional value and levels of fibre etc which he believes “might be more relevant or certainly needs to be considered”.
It is interesting that alcoholic drinks containing more than 1.3% ABV are exempt. According to the NHS alcohol advice website, one pint of 5% strength beer contains 239 kcal which is the equivalent of one standard size Mars Bar. Likewise, an average piña colada cocktail is likely to contain 300kcal per 230ml. This is reinforced by the fact that, unlike a restaurant meal, alcohol is often not consumed as part of one meal and, therefore, it is not difficult to consume higher amounts than recommended. Yet, calories associated with alcohol have not been caught by the new regulations.
The new regulations have been met with widespread criticism due to the impact this may have on those in the UK who suffer from an eating disorder. Around 1.25 million people in the UK have an eating disorder - a number which charity BEAT say has been exacerbated by lockdown and the pandemic. There are concerns that the new rules will lead to a fixation on restricting calories for those with such disorders.
There is clearly a balancing act between the need to regulate the nutritional value of food available in a proportionate way and encourage healthy eating, alongside the risks of inadvertently alienating a proportion of the population by reinforcing the issues of calorie counting on day to day basis. As it appears that the regulations are here to stay, we look forward to watching the developments and whether they have any impact on individuals’ eating habits.
In the meantime, businesses and corporations of all levels and size should ensure compliance with the new legislation. This includes the potential to introduce commercial solutions to some of the concerns raised above, such as the development of QR codes linking to menus that do not provide calorie information like other major restaurant chains. Alternatively, non-compliant businesses could face what is referred to as an improvement notice from a local authority.
We have the experience in advising clients, both companies and local authorities, on these sorts of issues. Please contact our corporate and regulatory teams at Penningtons Manches Cooper for any advice and assistance.
This article was co-written with Kate Abercromby, trainee solicitor in the commercial dispute resolution team.
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