Consultation outcome

Government response to the consultation on proposed legislative reforms in relation to nutrition and health claims on food

Updated 6 February 2024

Background

Leaving the European Union (EU) was a historic moment for the United Kingdom (UK), giving us, for the first time in many decades, the final say over the way we legislate. It is why the government passed the Retained EU Law (Revocation and Reform) Act 2023 (‘the act’), so that the special status of retained EU law (REUL) comes to an end. It ensures that, for the first time in a generation, the UK’s statute book will not recognise the supremacy of EU law or EU legal principles. It is an opportunity to make laws work for UK purposes. The act, therefore, provides powers to amend, remove and replace REUL with bespoke UK provisions to put business, consumers and the British public first.

The government is determined to realise the benefits of EU exit by ensuring that smarter regulation supports the UK’s ambitions of creating the best regulated economy in the world, and stimulating economic growth, innovation and job creation. For nutrition-related labelling, composition and standards (NLCS) this means:

• protecting consumer safety and public health
• ensuring accurate nutritional information so that consumers can make informed choices about their diet
• maintaining the competitiveness of NLCS businesses
• avoiding any unplanned intra-UK and wider international divergence to minimise barriers to trade

The Office for Health Improvement and Disparities (OHID) launched a 12-week consultation on proposed legislative reforms to nutrition and health claims on food and drink on 9 August 2023. The consultation proposed:

• reforming nutrition and health claims enforcement in England
• removing from the statute book redundant tertiary legislation relating to historical authorisations of health claims

The government is assimilating the majority of NLCS REUL, which achieves the right balance of maintaining high quality standards for consumers and robust and proportionate regulation.

The consultation was circulated widely and published on GOV.UK to seek views on the proposed changes. This document summarises the key comments made by respondents and OHID’s response to them.

We would like to thank respondents for sharing their views on the consultation.  

Why we consulted

The legislation which sets the general principles and requirements of overall food law places a statutory requirement to consult on changes to food law, stating:

There shall be open and transparent public consultation, directly or through representative bodies, during the preparation, evaluation and revision of food law, except where the urgency of the matter does not allow it.

NLCS legislation

What NLCS legislation covers

The government wants to ensure that consumers can have confidence in the nutritional content of the food they buy. This includes a safety net of legislation covering NLCS for some of the most vulnerable groups including babies, infants and people with specific nutritional needs. It also includes controls on the use of nutrition and health claims on all food and drink.

This regulation is in place to ensure that claims made about a food and drink are accurate, so consumers are not misled regarding the nutrient content and health benefits of the food or drink they buy. The use of authorised claims may also encourage consumers to make healthier choices which directly influence their total intake of foods, individual nutrients or other substances.

Without this regulation, food and drink labels might contain unreliable statements regarding the perceived health benefits of food and drink, which have not been scientifically assessed against the evidence.

Nutrition and health claims should only be used if they have been authorised following scientific assessment of evidence and where the food meets the conditions of use. For example, this may require nutrients to be present at specific levels in food and drink to support the claim that they have a beneficial impact on health.

The Nutrition and Health Claims (England) Regulations 2007 (‘the 2007 regulations’) form part of the legislation which is within scope of the provisional NLCS common framework.

The NLCS common framework was established between administrations in England, Scotland, Wales and Northern Ireland to manage the process of policy coherence and potential regulatory divergence within the UK after EU exit. The NLCS common framework replaces the legislative framework for NLCS, which was previously managed by the EU setting out the governance and decision-making processes and arrangements required for effective joint-working and implementation of nutrition legislation across the UK.

While responsibility for legislation governing general foods sits within the Department for the Environment, Food and Rural Affairs (DEFRA), there are some shared responsibilities for food and labelling legislation across the Department of Health and Social Care (DHSC), DEFRA and the Food Standards Agency (FSA).

DHSC has ownership of around 80 pieces of REUL which are managed under the NLCS common framework.

The consultation proposed changes to REUL and enforcement of compliance to it.

NLCS REUL consists of 3 retained EU regulations and their associated commission implementing regulations and 7 articles within the retained food information to consumers regulations. In addition, there are:

• several domestic statutory instruments and one statutory instrument that implements EU directives in England, Scotland and Wales, which form part of the NLCS legislation
• around 65 Commission Regulations (referred to later as tertiary legislation) related to health claim authorisations and domestic statutory instruments in each nation that enforce the requirements imposed by the retained EU and commission implementing regulations

More detail on nutrition-related REUL can be found in Annex 1 of the consultation document.

Consultation description

The consultation was conducted by the UK government. It was developed through engagement with officials in the devolved administrations (DAs) in Scotland, Wales and Northern Ireland. It is also in line with the agreements set out in the NLCS common framework, to maintain a consistent and co-ordinated policy approach across the UK.

The reform proposals which were contained within the consultation in summary would:

• reform the enforcement procedure for the regulation of nutrition and health claims in England by introducing an improvement notices regime (by means of making amendments to the 2007 regulations)
• revoke 60 Commission Regulations (tertiary legislation) which approved or rejected health claims

The proposal to introduce an improvement notices regime as an alternative to criminal prosecution (and make related provision) is aimed at providing enforcement authorities with a more proportionate way of responding to breaches of the law governing the use of nutrition and health claims and to reduce the burden on business. This provides the right incentive for food business operators to comply with the regulations and the right tools for enforcement authorities to respond to breaches.

The consultation also proposed the revocation of around 60 pieces of tertiary NLCS legislation which relate to authorisations of health claims. These decisions have already taken effect and are included in the annex of retained Commission Regulation 432/2012 (which sets out the list of authorised health claims). Therefore, revoking this legislation would allow us to tidy up the statute book.

Although the consultation was conducted by the UK government, the proposals for revocation would be implemented through a GB-wide statutory instrument, subject to the consent of governments in Scotland and Wales, as the regulations were retained for GB only under the Nutrition EU Exit Amendment 2020 statutory instrument. Reforms on introducing improvement notices would be implemented in England only by means of amending the 2007 regulations, with Scotland and Wales implementing similar enforcement regimes. With a restored Northern Ireland Executive, ministers in Northern Ireland will be able to bring forward similar changes to enforcement provisions relating to the introduction of improvement notices for nutrition and health claims, if they choose to do so.

Consultation process

The consultation was open for 12 weeks between 9 August 2023 and 31 October 2023.

The consultation was circulated widely and published on GOV.UK to seek views on the proposed changes.

OHID sought feedback from any person or organisation that may be impacted by the reform proposals contained within the consultation.

Breakdown of responses

We received a total of 52 responses to the consultation, of which:

• 32 (61.5%) were from organisations
• 6 (11.5%) were individuals with personal views
• 14 (29%) were individuals with professional views

We are grateful to all those who responded to the consultation.

Summary of feedback and government response

Introduction of an improvement notice regime

Question

Do you agree or disagree to the introduction of an improvement notice regime for nutrition and health claims as an additional step for enforcement authorities in England?

Please explain your answer.

Summary of feedback

Of the 51 responses to this question:

• 43 (84%) agreed
• 7 (14%) disagreed
• 1 (2%) didn’t know

The majority of respondents believed that introducing improvement notices for the enforcement of nutrition and health claims legislation in England will enable better and more efficient enforcement of non-compliant claims. They also believed this creates a level playing field by ensuring more businesses comply, and that it aligns with measures across Great Britain. They acknowledged that a similar regime is already in place in Scotland and proposals for improvement notices have been consulted upon in Wales. Scotland laid The Food (Scotland) Act 2015 (Compliance Notices) Regulations 2023 in Parliament on 25 May 2023, which came into force on 30 June 2023.

The majority of respondents supported a mechanism that would reduce the burden on enforcement agencies (for example, Trading Standards or environmental health department), if it results in increased compliance with the nutrition and health claims regulations. There was a view that the current policy does not provide sufficient incentive for enforcement authorities to address non-compliant claims, due to time pressures on the enforcement officers and potentially costly and burdensome court proceedings. Introducing improvement notices would bring the legislation into line with other food legislation and provide an alternative to criminal prosecution.

Nine respondents told us that they felt that it was important to protect public safety, that there needs to be a consistent approach to protect consumers and especially the most vulnerable. Others stated that families should be able to make informed, educated choices when selecting meals and snacks. There were also concerns noted that some consumers may be unaware of the contents of the foods they buy, especially when there is misleading information on the packaging.

Respondents highlighted the following benefits for an improvement notices regime for nutrition and health claims:

• the ability to deal with lower-level non-compliance by introducing a less burdensome and more proportionate enforcement regime
• issues can be dealt with more quickly than the current system which may involve costly and lengthy court proceedings
• engagement with businesses is likely to be more constructive because enforcement authorities notifying businesses of their intention to issue an improvement notice in itself can result in corrective action
• a less burdensome enforcement regime is likely to result in significantly lower costs for both businesses and enforcement authorities when compared to current formal proceedings
• provides a better incentive for food business operators to be compliant with the regulations
• helps reduce unfair competition, ensuring a level playing field for food business operators by providing better incentives for businesses to become compliant and enforcement authorities to address more non-compliance such as lower-level breaches
• improves consumer confidence in the market sector by removing non-compliant claims

Of the 7 respondents who disagreed, it was felt that there was a need for more evidence of the efficacy of improvement notices as a sufficient incentive for businesses and enforcement authorities, as well as concerns about the capacity of enforcement authorities.

Government response

The majority of respondents (84%) were in favour of introducing an improvement notices regime for nutrition and health claims as a more proportionate and effective enforcement regime, providing the right incentives for businesses and enforcement authorities, without placing any additional burden upon them.

Therefore, the government intends to bring forward regulations to introduce improvement notices to the enforcement regime.

Three-month notice period

Question

Do you agree or disagree with allowing a 3-month notice period to introduce improvement notices?

Please explain your answer.

Summary of feedback

Of the 49 responses to this question:

• 40 (82%) agreed
• 5 (10%) disagreed
• 4 (8%) didn’t know

The majority of respondents confirmed that a 3-month implementation period is an appropriate amount of time for businesses to familiarise themselves with the new enforcement arrangements. One of the reasons for this was that businesses and enforcement authorities are already familiar with the improvement notice regime because it applies across other food and NLCS legislation.

The majority of respondents also agreed there would be little or no impact on business with regard to the 3-month implementation period for this change.

There were mixed views from the minority of respondents (5) who did not agree with the 3-month implementation period.

They cited a potential for detrimental impact on the public if businesses have a 3-month implementation period in which to make misleading health claims, before having to amend them in line with the regulations. One respondent felt that the implementation period should be shorter because of the risk to consumers of products with non-compliant nutrition and health claims not being addressed sooner.

Some respondents felt that the introduction of improvement notices could result in an increase in enforcement action given the perceived relative ease with which they could be used. However, they agreed that it is beneficial that there is an expectation for enforcement officers to discuss their concerns with the business, before issuing an improvement notice, as a first step in any hierarchy of enforcement which could potentially reduce the burden.

Concerns about enforcement of non-compliant nutrition and health claims on products already on the market were raised. Suggestions included that a longer timeframe would be beneficial, allowing time for businesses to withdraw and revise and amend nutrition and health claims, in good faith. It was suggested that because products may remain on shelves for long periods of time (1 to 2 years), there should be a sell-through period for products with non-compliant claims.

Government response

Although there were a small number of respondents with opposing views on the implementation period, the majority agreed that allowing a 3-month notice period would enable businesses and enforcement authorities to adequately familiarise themselves with the changes in legislation. Where concerns were raised about non-compliant goods on the market, it is worth noting that the standards themselves are not changing and already apply to all products.

Therefore the government will provide 3 months’ notice between legislating and implementation. The government’s intention is to lay a statutory instrument early in 2024, to come into force on 1 October 2024 in line with common commencement dates.  

Removing redundant tertiary legislation

Question

Do you agree or disagree with removing redundant tertiary legislation relating to the authorisation of health claims?

Please explain your answer.

Summary of feedback

Of the 51 responses to this question:

• 42 (82%) agreed
• 3 (6%) disagreed
• 6 (12%) didn’t know

The majority of respondents agreed that revoking the tertiary NLCS legislation from the statute book would make it simpler to navigate for enforcement officers. The majority view was that this helps both enforcement authorities and businesses in understanding legislative requirements.

Eight respondents explicitly agreed that revoking this legislation has no legal impact as their legal effect is retained in the parent legislation in the annex to Commission Regulation 432/2012.

One respondent felt the authorisation decisions relating to the tertiary legislation should be logged and detailed somewhere accessible and in an easily accessible format to maintain the link between the scientific data and rationale for the decision.

One respondent disagreed with the proposal as they felt the tertiary legislation safeguards the public.

Government response

The significant majority of respondents (82%) agreed that it would be helpful to revoke any redundant tertiary legislation which will tidy up the statute book, making it easier for enforcement authorities and businesses to understand the legislation.

Therefore, the government will bring forward regulations to revoke redundant tertiary legislation relating to the authorisation of health claims on a Great Britain-wide basis, subject to agreement from governments in Scotland and Wales.

Impacts that have been identified in the consultation

Question

Do you agree or disagree with the impacts that have been identified as resulting from proposals set out within this consultation?

Please explain your answer.

Summary of feedback

Of the 49 responses to this question:

• 36 (74%) agreed
• 7 (14%) disagreed
• 6 (12%) didn’t know

The majority of respondents agreed that no new burdens for businesses would be created, and that the only cost impact is familiarisation with the amended legislation on the part of business and enforcement authorities. These costs are direct costs and are assumed to be one-off and that the full amount is incurred immediately.

Those respondents (7) who disagreed raised issues such as consistency in enforcement by Trading Standards, impact on international trading and the need for additional guidance.

Government response

The majority of respondents agreed that the proposed reforms would not impose significant cost for businesses to implement and would protect public health by supporting both businesses and consumers.

Trading Standards officers in England are already required to enforce non-compliance with nutrition and health claims regulations. The introduction of an improvement notice regime as a potential first step to enforcement would facilitate a faster, cheaper and more proportionate method for ensuring compliance and would be consistent with other NLCS legislation enforcement processes. This will ensure a consistent enforcement mechanism between large and small businesses. Trading Standards officers are also already familiar with the use of improvement notices as a method of enforcement in wider food regulation.

The impact assessment took into account the plan that existing NLCS guidance will be updated, to assist industry to understand how the reformed enforcement process will work in respect of nutrition and health claims regulation and will include the expected timescales for implementation.

Consultation responses confirmed the assessments of the policy impacts, therefore no amendments are required to the regulatory triage assessment.

Impacts that have not been identified in the consultation

Question

Are you aware of any impacts that have not been identified in this consultation?

Summary of feedback

Where respondents felt that they could identify additional impacts, these were generally about the capacity, capability and available resource of enforcement authorities to prioritise additional nutrition and health claims improvement notices, this included the impacts on workforce and training around legal requirements.

One respondent felt that there is confusion across businesses about when NLCS or medicines regulation applies to their products.

Government response

We have liaised with the Association of Chief Trading Standards Officers (ACTSO) and the Local Government Association (LGA) to assess the impacts for enforcement authorities of these policy proposals. Due to the limited extent of the proposed reforms they agree that familiarisation is the only cost impact of these policy reforms on enforcement authorities. These are direct one-off costs.

As there were no significant additional impacts identified that we consider should result in changes to the policy proposals or any additional costs to business or Trading Standards which have not already been included in the regulatory triage assessment, we will proceed with our proposals as set out in the preceding sections of this response.

Benefits of the proposals

Question

Do you agree or disagree with the benefits these proposals would have which are referred to in the consultation?

Please explain your answer.

Summary of feedback

Of the 46 responses to this question:

• 31 (67.4%) agreed
• 7 (15.2%) disagreed
• 8 (17.4%) didn’t know

The majority of respondents agreed with the benefits that the consultation outlined would be achieved by these proposals. Those that disagreed (7) raised a range of matters that were out of scope for this consultation.

Government response

Respondents mostly agreed with the benefits identified in the consultation and there was a majority view that the proposals would reduce cost and time burdens on businesses and enforcement authorities and improve consumer safety.

Some respondents took the opportunity to raise issues that were not directly relevant to the proposals set out within the consultation. As they were out of scope, those responses have not been addressed in this consultation response.

As there were no significant additional benefits identified that we consider should result in changes to the policy proposals and which have not already been included in the regulatory triage assessment, we intend to proceed to make the legislation as set out in the preceding sections of this response.

Next steps

Following the publication of this consultation response, the government will:

• legislate to reform the enforcement procedure for the regulation of nutrition and health claims in England by introducing an improvement notices regime
• revoke 60 Commission Regulations (tertiary legislation) which approved or rejected health claims
• provide guidance relating to legislative changes to businesses through a nutrition legislation information sheet published on GOV.UK

Legislative changes

The power to make NLCS legislation is devolved to the Scottish Government, Welsh Government and Northern Ireland Executive. This is set out in the respective devolution settlements (Scotland Act 1998, Government of Wales Acts 1998 and 2006, and Northern Ireland Act 1998). This means the appropriate authorities in Scotland, Wales and Northern Ireland can make regulations on NLCS within their respective jurisdictions.

To introduce improvement notices in England, the government intends to use powers in the Food Safety Act 1990, for England only, to make regulations to amend the Nutrition and Health Claims (England) Regulations 2007 to enable improvement notices to be issued for non compliance with nutrition and health claims legislation as an alternative to criminal prosecution (and make related provision).The government will provide 3 months’ notice between legislating and implementation. The government’s intention is to lay a statutory instrument early in 2024, to come into force in October 2024 in line with common commencement dates.

The government intends to make regulations under the powers in the Retained EU Law (Revocation and Reform) Act 2023 to revoke 60 pieces of tertiary legislation which authorised or rejected health claims. The extent of this instrument will be Great Britain-wide and subject to the consent of governments in Scotland and Wales. If such consent is given, then we would plan that the regulations would come into force in 2024.

The Welsh Government published a separate 8-week consultation (from 20 September to 15 November 2023) to seek views on proposals to introduce an improvement notice regime for nutrition and health claims in Wales in parallel with England. Improvement notices will come into force in Wales within a similar timeframe as in England.

Food Standards Scotland issued an 8-week public consultation from 21 October to 16 December 2022 on proposals to introduce a new compliance notice for breaches of food standards in Scotland. Scotland laid The Food (Scotland) Act 2015 (Compliance Notices) Regulations 2023  in Parliament on 25 May 2023, which came into force on 30 June 2023.

Northern Ireland continues to have full participation in risk assessment and risk management processes concerning NLCS policy, including proposed amendments to legislation. With a restored Northern Ireland Executive, ministers in Northern Ireland will be able to bring forward similar changes to enforcement provisions relating to the introduction of improvement notices for nutrition and health claims, if they choose to do so.