Restaurants and takeaways need to be aware of new rules coming in 2022 on calorie labelling. The Department of Health and Social Care (“DHSC”) has recently published the outcome of their consultation on mandatory food labelling. They envisage that their suggested changes will become law in Spring 2022. The consultation outcome sets out how compliance with the new rules on displaying calorie information will be investigated, as well as views on penalties that could be administered where businesses fail to comply.

Mandatory food labelling for ready to eat food (food that is ready for immediate consumption, served at restaurants, takeaways and cafes, and online from food delivery platforms) is one of the measures set to be introduced by the government in the hope that it will help reduce obesity levels in the UK, especially among children. Food labelling will work alongside the rules restricting HFSS advertising to children, which have been in force since 2017 and are enforced by the ASA.

Local authority checks

The consultation agreed that the local authorities will be able to check for:

• the presence of calorie labels on food and drink items that are in scope of the policy;
• whether calorie labels are displayed as per the requirements under the law;
• the method businesses have used to calculate calorie content and whether that method is appropriate (this method is yet to be agreed); and
• whether calorie labels are appropriately displayed on any online presence that the business may have, including 3rd party platforms delivery platforms.

Penalties for non-compliance

Local authorities will have the option to issue an improvement notice, which need not be the first action; the first action can instead be an initial conversation between the officer and the business.

Any business failing to comply with an improvement notice is guilty of an offence and the enforcement authority may issue a notice of intent to impose on the business a fixed monetary penalty (FMP) of £2,500, as an alternative to prosecution.

Local authorities will have to impose the penalties in a way which is proportionate and will also have the power to start criminal prosecution if appropriate.

Process for issuing monetary penalties

Businesses will have 28 days to make objections or discharge liability following a notice of intent.

If the penalty is paid within 28 days, businesses will be able to discharge liability by paying 50% of the penalty proposed.

If the penalty is not discharged, an enforcement officer may impose a final notice imposing a fixed monetary penalty and businesses will have 28 days in which to pay or appeal.

Failure to appeal or pay the penalty within these 28 days will result in an increase of the penalty by 50%.

Guidance

Local authorities will be required to produce guidance about the new penalties and how they will be used to enforce an offence. This will include information on the circumstances in which a penalty is likely to be imposed or not, how liability for the penalty may be discharged, and rights to make representations and objections or to appeal.

These enforcement measures will apply to large businesses (those with over 250 employees) at first, but the government has not ruled out the possibility that it may be extended to smaller businesses once it has been rolled out.

Next steps

The UK government intends to use powers in the Food Safety Act 1990 and the Regulatory Enforcement and Sanctions Act 2008, to lay legislation before Parliament in 2021 with the intention that legislation comes into force around 12 months later.