There is less than a month to go before the UK’s new Calorie Labelling (Out of Home Sector) (England) Regulations 2021 (the “Regulations”) come into force (6 April 2022). The Regulations include obligations for calorie labelling for ‘non-prepacked foods’ in England, which are sold in a form suitable for ‘immediate consumption’. They will require businesses of a certain size (250 or more employees) to provide details of the energy value for meals and other foods served on site to customers in restaurants, cafes, pubs, workplaces and in canteens; for meals and other foods sold for consumption off-site, from shops, delicatessens, sandwich bars and takeaways; and for ‘distance sales’ over the internet or the phone (the ‘out of home’ sector).
The government has published implementation guidance in relation to the Regulations (the “Guidance”) which includes further information for businesses, with annexes providing pictorial examples of how calorie information should be given on a ‘per portion’ basis for various different settings. Other organisations are also publishing guidance. For example, at the end of February, the Association of Convenience Stores launched new guidance on the Regulations, aimed at retailers, with both a one page quick-reference guide and a more detailed document; and UK Hospitality has a FAQ page on its website dedicated to the Regulations (and are lobbying for a delay in implementation).
However, a number of areas where operators trying to understand and comply with the Regulations are facing challenges around interpretation and application of the Regulations in practice. In particular, a number of queries are arising out of:
- The calculation of employee numbers for the purposes of determining businesses which are exempt (noting that a franchise agreement is included as ‘part of the business of the franchisor’ for this purpose);
- The definitions of exempt food, including the practical application of the ’30 day’ exemption, food for particular audiences and food in particular settings;
- The application of the Regulations to drinks, as well as food products;
- The requirement to give information in portion sizes, which may not be straightforward for meals or products which are not pre-portioned, for example, meals served from a hot plate, or dishes from which customers help themselves;
- The way in which the Regulations will sit alongside the existing provisions of the (retained) EU Food Information for Consumers Regulation (EU 1169/2011 (the “EU FIC”) which continues to have effect in the UK post-Brexit as retained law (the provisions of the EU FIC allow for the provision of an energy value alone for non-prepacked foods and therefore the requirements of the EU FIC in relation to energy values, including requirements for calculation of those values, conversion factors and the format of information on those values, will apply when operators are providing calorie information under the Regulations);
- How to ensure that the information provided is accurate and not misleading to consumers in circumstances where it is possible that ingredients, portion sizes and other factors can change from day to day; and
- The application of the Regulations to food which is pre-packed for direct sale (the category of foods which was impacted by Natasha’s Law in October 2021)
The guidance is not particularly clear in relation to a number of aspects when applied to the circumstances of many businesses; and it is likely that there will be a period of adjustment after 6 April while operators, many of whom are still recovering from the impact of the pandemic, will need support and guidance to comply with the Regulations.