Consultation outcome

Restricting promotions of products high in fat, sugar and salt by location and by price: equality assessment

Updated 19 July 2021

Introduction

This paper examines the impact of the policy to restrict promotions of products high in fat, sugar and salt (HFSS) by location and by price on people with protected characteristics. This is in accordance with our duties under the Equality Act 2010.

Under the Equality Act 2010 (the Act), the Department of Health and Social Care (DHSC), as a public authority, is legally obliged to give due regard to the public sector equality duty when making policy decisions. The public sector equality duty is also known as the general equality duty.

DHSC, as a public authority must, in the exercise of its functions, have due regard to the need to:

a) eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act

b) advance equality of opportunity between people who share a protected characteristic and those who do not

c) foster good relations between people who share a protected characteristic and those who do not

The public sector equality duty covers consideration of the following protected characteristics:

  • age
  • disability
  • gender reassignment
  • pregnancy and maternity
  • race
  • religion and belief
  • sex
  • sexual orientation
  • with marriage and civil partnership being a protected characteristic under (a) above

There is limited evidence to assess whether restricting promotions of products high in fat, sugar and salt impacts people with these protected characteristics in terms of advancing equality of opportunity and fostering good relations as set out under (b) and (c) above. However, DHSC's duties under the Equality Act are continuous and will be monitored and reviewed over time.

Restricting promotions of products high in fat, sugar and salt by location and by price

Obesity is one of the biggest public health challenges of our time with nearly a quarter of children in England overweight or living with obesity by the time they start primary school aged five, rising to one third by the time they leave aged 11.[footnote 1] These figures disproportionally affect those in lower socio-economic groups, whilst obesity also has links with age, race, sex and disability.[footnote 2], [footnote 3] This is impacting children's health now, with type 2 diabetes in children strongly associated with obesity[footnote 4], and will impact obese children in the future as they are more likely to be obese adults.[footnote 5] This in turn increases their risk of developing life-threatening conditions such as some cancers, type 2 diabetes, heart and liver disease.[footnote 6], [footnote 7]

To improve the health of children both now and in the future, the government published Childhood obesity: A plan for action – chapter 2 in June 2018 and announced its ambition to halve childhood obesity by 2030 and significantly reduce the inequalities between the most and least deprived children. A key commitment in the childhood obesity plan was to consult on proposals to (1) ban volume price promotions, such as buy one get one free, multi-buy offers (BOGOFs) and unlimited refills of unhealthy foods and drinks, and (2) ban the promotion of unhealthy food and drink by location (at checkouts, the ends of aisles and store entrances) in retailers that sell food and drink.

DHSC consulted on this proposal through January 2019 to April 2019. Following consultation, the government has decided to legislate to restrict promotions of HFSS products by location and by price. The decision was announced in the government's Obesity Strategy, Tackling Obesity: Empowering adults and children to live healthier lives[footnote 8], published in July 2020.

The restrictions will apply to all medium and large businesses (50 or more employees) that sell food and drink products in England and will only apply to pre-packaged HFSS products that are included in a specified list of products that are the highest contributors to sugar and calorie intake in children's diets and to free refills of sugar-sweetened beverages sold in the eating-out sector. Table 1 presents a summary of the policy scope. This document is intended to be read in conjunction with the government's response to the consultation, which sets out more detailed information about the policy objectives.

Table 1: policy inclusions and exclusions

Table 1a: price promotions

In scope Out of scope
Volume promotions ('multibuy' promotions and 'extra free' promotions) of pre-packaged HFSS products All other types of price promotions, for example temporary price cuts
Free refills of sugar-sweetened beverages in the out-of-home sector Price promotions for meals in the out of home sector, for example '2 courses for £12', 'kids eat free'

Table 1b: locations in store

In scope Out of scope
Checkout areas: the till point or a self-checkout area and the surrounding floor space area (any area within 2 metres), as well as the queueing areas leading to the till point or self-checkout All other in store locations
Ends of aisles: the point of purchase advertising of products placed at the ends (front and/or back) of shelf rows in stores, or on separate units adjacent to the ends of the shelf rows for example island bin displays  
Store entrances: the display of products placed at/in the vicinity of the store entrance(s).  

Table 1c: locations online

In scope Out of scope
Entry pages of retailer's website or grocery page Special offer pages
Landing pages when customer is browsing other categories of food Favourites pages if a customer has made the HFSS product a favourite or previously purchased the HFSS product.
Pages where customers view their shopping basket or proceed to payment  

Table 1d: businesses

In scope Out of scope
Businesses greater than or equal to 50 employees (incl. online retailers and retailers who do not primarily sell food or drink) and stores that are a member of a symbol group or franchise, where there are 50 or more employees operating under that business name. Micro (fewer than 10 employees) and small businesses (10 to 49 employees) – out of scope for price and location promotions
  Specialist retailers that only sell one type of product and this is within the product categories in scope of the restrictions, for example chocolatiers or sweet shops – out of scope for location promotions only
  Store areas less than 185.8 square metres (2,000 square feet) – out of scope for location promotions only

Table 1e: products

In scope Out of scope
Soft drinks with added sugar that are in scope of the soft drinks industry levy Non-pre-packaged products (except for free refills of sugar sweetened beverages in the out of home sector)
Chocolate confectionery All other products outside the specified categories in scope of the policy
Sugar confectionery Products not deemed to be high fat, salt or sugar as defined by the nutrient profiling model.
Cakes  
Ice cream  
Morning goods (for example pastries)  
Puddings and dairy desserts  
Sweet biscuits  
Breakfast cereals  
Yogurts  
Milk drinks with added sugar  
Juices with added sugar  
Pizza  
Crisps and savoury snacks  
Ready meals and meal centres  
Chips and similar potato products  

The policy is intended to benefit the health of children and is not designed to increase disadvantage between individuals or groups, including those that share protected characteristics as set out in the Equality Act 2010. In the consultation DHSC asked for views from the public, industry and organisations on whether the proposal is likely to have an impact:

  1. on people with protected characteristics,or

  2. on people from a lower socio-economic background

We have considered the consultation responses and further examined the likelihood of any unintended consequences and how we can mitigate any disadvantages resulting from this policy.

Although socio-economic background is not a protected characteristic as set out in the Equality Act 2010, some respondents said that this policy is likely to increase the cost of food and therefore negatively impact people from a lower socio-economic status. Whilst promotions may make products cheaper, they also encourage people to buy 18% more food and drink than planned. It is not the intention or aim of this policy to increase the cost of food for consumers. We are therefore only targeting volume-based types of promotions on HFSS products that require consumers to purchase more to take advantage of the discount. In doing so, the policy aims to reduce children's overconsumption of HFSS products that can lead to weight gain and over time, obesity, by improving the food environment to help consumers make healthier choices.

The following section will examine the likely impact of this policy on various groups sharing protected characteristics.

Consultation feedback

Do you think that the proposed policy to restrict promotions of HFSS products by location and by price is likely to have an impact on people on the basis of their age, sex, race, religion, sexual orientation, pregnancy and maternity, disability, gender reassignment and marriage/civil partnership?

  • Yes: 163 (20.2%)

  • No: 342 (42.4%)

  • Not answered: 302 (37.4%)

  • Total: 807

The consultation sought views on whether this proposal would be likely to have an impact on people on the basis of a number of protected characteristics. Respondents could provide a justification to explain their answer in a free text box. Free text answers were analysed to assess whether the respondent believed the policy would have a positive or negative effect on the particular characteristic. The vast majority of those that answered 'Yes' or 'No' did not leave a free text response.

In the free text responses, some respondents suggested that the policy may have a negative impact on those from lower socio-economic groups, with others flagging it would negatively affect everyone irrespective of their economic background. The other most common responses considered that there could be an impact on age, race and disability, with a small number of comments particularly focused on the negative impact the policy could have for those who have type 1 diabetes.

Do you think this proposal would help achieve any of the following aims?

  1. eliminating discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010

  2. advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it

  3. fostering good relations between persons who share a relevant protected characteristic and persons who do not share it

  • Yes: 64 (7.9%)

  • No: 387 (48.0%)

  • Not answered: 356 (44.1%)

  • Total: 807

Respondents could provide free text responses to justify their answer. The vast majority of respondents did not provide free text responses. For those that did, the most common themes were that the policy would have a positive health impact including reducing health inequalities and that the policy would help reduce discrimination of individuals living with obesity.

Assessment against protected characteristics

Overall, our assessment shows that the policy is not expected to have a negative impact on or increase disadvantage between individuals or groups, including those that share protected characteristics as set out in the Equality Act 2010.

It is clear from the academic evidence that marketing and promotions in stores are extensive, deep and effective at influencing food preferences and purchases.[footnote 9] Price promotions appeal to people from all demographic groups and frequently lead people to buy more of the promoted category than expected.[footnote 10] However, children are uniquely vulnerable to the techniques used to promote sales.[footnote 11]

The policy aims to reduce children's HFSS overconsumption and improve the wider food environment by shifting the balance of promotional offers towards healthier products and maximising the availability of those products to help consumers make healthier choices. The policy is expected to lead to a reduction in children's overconsumption of HFSS products that are linked with excess sugar and calorie intake and over time, weight gain and obesity. Even though the policy is specifically targeted at children and focused on those products that children consume the most, it is expected to influence the wider food environment and therefore have a positive impact across the population.

We recognise that the positive impact of the policy may be greater for some groups. Some protected characteristics, for example race and disability, are associated with differential rates of overweight and obesity than average. Evidence suggests that groups who are living with obesity are more likely to buy products on price promotion [footnote 12] and may therefore benefit more from restricted promotions on HFSS products. Therefore, populations with certain protected characteristics might experience greater health benefits as a result of this policy.

This section will examine the impact of the policy on various groups sharing protected characteristics.

Age

Obesity prevalence

Obesity prevalence is different across age groups. Public Health England (PHE) analysis of National Child Measurement Programme (NCMP) data shows that obesity and overweight prevalence increases in children in England as they progress through primary school. Around 1 in 10 children in reception and 1 in 5 children in year 6 are living with obesity.[footnote 13]

In adults, the 2018 results from the Health Survey for England (HSE) showed that 63% of adults were classified as overweight or living with obesity.[footnote 14] Obesity and overweight rates went up with age but decreased in the oldest age groups. Obesity rates ranged from 13% in men aged 16 to 24 to a peak of 36% in men aged 45 to 54, and the equivalent range for women was from 14% aged 16 to 24 to 37% aged 55 to 64. This decreased to 28% for both men and women aged 75+.

Impact of promotions policy

We do not foresee any group being disadvantaged by age. The benefits from the policy arise mostly as health improves in older age. For example, raised body mass index (BMI) is a major risk factor for type 2 diabetes, heart disease and certain cancers (breast, colon and endometrial).[footnote 15] This risk of these conditions increases with age. The individuals affected by the policy today (including children) will benefit if they can maintain a lower weight as a result of the interventions in place. This is especially important as we know that overweight or obese children are far more likely to go on to become obese adults[footnote 16], with a higher risk of developing life-threatening conditions such as some forms of cancer, type 2 diabetes, heart disease[footnote 17] and liver disease.[footnote 18]

Data shows that the diets of children in the UK are not balanced.[footnote 19] Children consume too much sugar, saturated fat and salt and too many calories, but not enough fibre, fruit and vegetables. Data specifically shows that children between 11-18 years old consume up to nearly three times the recommended maximum amount of sugar at 14.1% total energy (around 70g of sugar) per day. This decreased to around 11% total energy for adults. Table 2 provides a summary of average dietary intakes for age per PHE data.

Table 2: average daily intake for NDNS RP UK Years 7 and 8 (combined) (2014/15-2015/16)

Children 1.5-3 years Children 4-10 years Children 11-18 years Adults 19-64 years Adults 65-74 years Adults 75+ years
Energy (kcal/day) 1,076 1,432 1,716 1,860 1,693 1,556
Total fat (% total energy) 34.4 33.4 33.7 33.2 32.7 35.1
Saturated fat (% total energy) 14.5 13 12.4 11.9 12.5 14.3
Free sugars (% total energy) 11.3 13.5 14.1 11.1 11 11.3
AOAC fibre (g/day) 10.3 14 15.3 19 18.4 16.5

In the consultation, a number of individuals responded that they believed that restricting promotions on HFSS products would have more of an impact on children and young adults because HFSS products in scope are commonly consumed by children. However, this policy aims to benefit children, by reducing overconsumption of HFSS products which are linked to obesity, type 2 diabetes, and tooth decay. Children are uniquely vulnerable to the techniques used to promote HFSS sales and these effects can be transmitted into the purchasing behaviours of parents through 'pester power'.[footnote 20] Pester power' is the ability of children to pressure their parents to buy products, particularly those advertised by media.

The policy aims to reduce children's overconsumption of HFSS products which contribute the most sugar and calories to children's diets, and to maximise the availability of healthier products that are offered on promotion, to make it easier for parents to make healthier choices when shopping for their families. Although the policy aims to reduce childhood obesity, it will have an effect on the whole population by influencing the wider food environment and the food choices available to both children and adults. Therefore, this policy is likely to have a beneficial impact on people across different age groups.

Disability

Obesity prevalence

Analysis by Public Health England suggests children with disabilities are more likely to be obese than those without disabilities. This difference increases with age. Analysis of combined data from the Health Survey for England 2006-2010 shows that children with a limiting long-term illness are approximately 35% more likely to be obese than children without a limiting long-term illness. Overweight and obesity in children and young people has also been linked to a range of disabling conditions, including learning disabilities, physical activity limitations, spina bifida as well as audio-visual impairments.[footnote 21] Disabled children are therefore at greater risk of developing obesity-associated conditions as adults, such as type II diabetes.

In adults, there is a two-way relationship between obesity and disability; i.e. disabled adults are more likely to be at risk of obesity, while obese adults may develop complications leading to disabilities because of being obese.[footnote 22] Analysis of NHS Digital (NHSD) primary care data showed that people with disabilities have substantially higher rates of conditions with being overweight such as diabetes, heart failure and strokes.[footnote 23]

People with learning disabilities are more often overweight or living with obesity at higher rates than the general population, with poorly balanced diets and low levels of physical activity.[footnote 24] Data from NHSD, based on data from GPs across England found that obesity is twice as common in people aged 18-35 with learning disabilities compared with patients with no learning disabilities.[footnote 25]

Impact of promotions policy

Some consultation responses mentioned that restrictions on location-based promotions could impact people who have limited mobility and who might have to travel further within a supermarket to find their desired product. Restrictions on location-based HFSS promotions are to prevent unnecessary temptation for consumers and reduce impulse purchasing of HFSS products, as opposed to reduce their accessibility. Businesses should provide assistance for people with limited mobility to ensure in-store accessibility. This policy should therefore not have a significant impact on people with this protected characteristic.

Some respondents were concerned about the potential negative impact on people with certain health conditions, such as diabetes. Respondents highlighted that people living with, or caring for, someone with diabetes may rely on using a high sugar product to treat the event of low blood sugar (hypoglycaemia). We heard that introducing price restrictions may limit the accessibility of these food types for this audience. The aim of this policy is not to prevent the sale of these products nor increase the cost of food for consumers. The price restrictions are only on volume promotions such as "3 for 2" offers not price reductions so we expect the sale of these products to continue. However, by reducing children's overconsumption of HFSS products sold on promotion, the policy aims to reduce the prevalence of obesity which may therefore reduce the incidence of associated health risks in childhood and adulthood, including type 2 diabetes. It is therefore not expected that the policy will result in any significant inconvenience for people with diabetes and in managing their low blood glucose incidents. Products will remain available and accessible if required.

Not directly linked to obesity, phenylketonuria (PKU) is a rare but potentially serious inherited disorder. Persons with PKU are intolerant to aspartame, an ingredient in food and drink which delivers a sweet taste with lower or no sugar content. In the consultation we received views from people affected by PKU. These responses noted that reformulation to reduce sugar in foods and drinks, as through the government's soft drinks industry levy (SDIL) and PHE's sugar and calorie reduction programmes, can lead to increase in usage of aspartame. The promotions policy is restricted to a specific list of HFSS products and does not explicitly require businesses to reformulate their products, although this may be an action that businesses choose to take in order to be able to promote their products by volume and location. However, any significant increase specifically in aspartame is not expected as a result of this policy.

This policy is expected to have a positive impact across the population, including disabled and non-disabled individuals. Although targeted at children, the policy affects the food environment and therefore both adults and children with disabilities are expected to benefit.

Gender reassignment

We have considered the impact of the policy on the protected characteristic of gender reassignment. There is no evidence to suggest that the policy will have a negative impact on people who share this protected characteristic as compared with people who do not share this protected characteristic.

Pregnancy and maternity

Obesity prevalence

Women who are obese when they become pregnant have increased risks to their own and their babies' health. They are more likely to experience complications in labour[footnote 26] and their children have increased risks of obesity in childhood and adulthood, and other health conditions later in life including heart disease, diabetes, and asthma.[footnote 27], [footnote 28], [footnote 29], [footnote 30] Maternal obesity is also associated with an increased risk of infant mortality.[footnote 31]

Although maternal obesity rates are not routinely monitored in England, we do know that obesity in pregnant women has increased, which is likely to increase the risks passed on to children. Between 1989 and 2007, maternal obesity (the proportion of pregnant women with a BMI greater than 30) doubled from 7.6% to 15.6%.[footnote 32], [footnote 33] In 2017, PHE analysis found that 49% of women who were pregnant in England were either overweight or obese and therefore they and their children are at greater risk during and after the pregnancy.[footnote 34]

Impact of promotions policy

Even though the policy is targeted at children, it would have an effect on the wider food environment and would affect the eating behaviour of all age groups, including women at childbearing age. Therefore, we expect a positive impact from the policy on maternal obesity rates, and a knock-on positive impact on the associated risks with maternal obesity.

Race

Obesity prevalence

Data shows that there are differences in overweight and obesity prevalence across racial groups for both children and adults.

Table 3: prevalence of overweight and obesity for children by ethnic category (NCMP (2019/20))

Ethnicity 2018/19, reception Year 6
Total 23% 35.2%
White British 23.8% 32.9%
White Irish 23.2% 34.9%
White other 21.2% 36.7%
Mixed white and black Caribbean 27.1% 41.0%
Mixed white and black African 27.4% 43.4%
Mixed white and Asian 17.0% 31.4%
Mixed other 21.2% 36.4%
Indian 13.8% 36.2%
Pakistani 20.4% 40.7%
Bangladeshi 21.5% 45.1%
Asian other 18.9% 40.0%
Black Caribbean 26.3% 44.9%
Black African 29.8% 46.2%
Black other 26.7% 42.6%
Chinese 14.9% 32.9%
Any other ethnic group 23.2% 40.4%
Not stated 22.4% 35.2%

Mixed white and Asian, white British, and Chinese pupils in Year 6 had the lowest prevalence of obesity compared to other ethnic groups (31.4%, 32.9% and 32.9% respectively), with children of Black African ethnicity and Bangladeshi children having the highest prevalence of obesity (46.2% and 45.1% respectively).

Data from the Active Lives Survey 2018/19[footnote 35] Table 3 demonstrates that Chinese adults had the lowest rates of overweight and obesity (35.3%), with Black adults having the highest prevalence at 73.6%.

Table 4: prevalence of overweight and obesity for adults by ethnic category (Active Lives Survey (2018/19))

Ethnicity 2018/19, adults
Total 62.3%
White British 63.3%
White other 58.1%
Mixed 57.0%
Asian 56.2%
Black 73.6%
Chinese 35.3%
Other 52.6%

Differences in weight between racial groups arise due to various factors such as environmental factors, health behaviours, socio-economic status and access to health care.[footnote 36], [footnote 37] The reasons for differences in obesity prevalence across ethnicities are various and it is difficult to state how different groups will benefit from the policies. The fact that ethnic differences persist even when controlling for deprivation and controlling for interaction suggests that cultural and genetic differences within some ethnic minority groups may account for the increased likelihood of children from these groups becoming obese or overweight.[footnote 38], [footnote 39], [footnote 40], [footnote 41], [footnote 42], [footnote 43]

People from different ethnic groups have different levels of risk if they develop conditions associated with obesity and being overweight. For the same level of BMI, people of African ethnicity appear to carry less fat and people of Asian ethnicity generally have a higher percentage of body fat than people of the same age and gender.[footnote 44],[footnote 45] Some ethnic minority groups (especially those of Asian descent) are at risk of type 2 diabetes and cardiovascular disease at a lower BMI than other groups.[footnote 46],[footnote 47]

The local authority trailblazer programme will support participating authorities to tackle childhood obesity at a local level with a particular focus on addressing the inequalities and ethnic disparities in their area. In this way, there is potential for trailblazer authorities to have a positive impact on local ethnic disparities.

Impact of promotions policy

There were a number of responses which discussed the impact of the policy on the protected characteristic of race. These responses typically either sighted the differing levels of obesity prevalence or the socioeconomic status among different ethnic groups, leading to differing levels of impact of the policies. The impact on different socioeconomic groups is discussed in this document.

Efforts to target different ethnic groups with promotions has increased in recent years.[footnote 48] Some studies have shown that people from ethnic minority backgrounds might be more influenced by different styles of promotions than the general population.[footnote 49],[footnote 50] However, there are no studies which determine whether people from different ethnic groups buy more on promotion. Regardless, the proposed policy will restrict all forms of promotions on HFSS products that are in scope and will not differentially impact people across ethnic groups.

The proposed policies are targeted at children (and adults) from all ethnicities and are therefore expected to have a positive effect on all ethnic groups. The policy is to be implemented in a way that does not differentiate by race. No relationship has been found between ethnicity and techniques used to promote sales. However, some ethnic groups experience higher obesity prevalence and therefore the potential for a reduction in obesity may be higher.

Religion and belief

We have considered the impact of the policy on the protected characteristic of religion and belief. There is no evidence to suggest that the policy will have a negative impact on people who share this protected characteristic as compared with people who do not share this protected characteristic.

Sex

Obesity prevalence

There are differences in obesity prevalence depending on gender:

The differences in obesity prevalence by gender have various underlying possible reasons. There is little data to identify the difference in girls' and boys' diets. National Diet and Nutrition Survey (NDNS) data, for example, cannot be reliably analysed by gender because of its small sample size and the persistent problem of under-reporting that is common to all diet diaries.

Impact of promotions policies

The differences by gender have various possible reasons. As this policy is focused on tackling childhood obesity, we have considered whether there is a differential impact expected on girls and boys. However, no relationship has been found between gender and techniques used to promote sales as outlined within the proposal and there is no evidence to suggest that the policy will have different effects depending on sex for both adults and children.

Sexual orientation

We have considered the impact of the policy on the protected characteristic of sexual orientation. There is no evidence to suggest that the policy will have a negative impact on people who share this protected characteristic as compared with people who do not share this protected characteristic.

Marriage and civil partnership

We have considered the impact of the policy on the protected characteristic of marriage and civil partnership. There is no evidence to suggest that the policy will have a negative impact on people who share this protected characteristic as compared with people who do not share this protected characteristic.

Summary of the effects of the policy on people with protected characteristics

Protected characteristic Likely effect of policy
Age Neutral or positive – maintenance of a lower weight is beneficial across the life-course; however, children are uniquely vulnerable to the techniques used to promote sales and therefore the potential for health benefits due to weight reduction may be bigger
Disability Neutral or positive – there is a link between obesity and disability. Reducing obesity results in health benefits for people with this protected characteristic
Gender Reassignment Neutral
Pregnancy and maternity Neutral or positive – there is a link between obesity and pregnancy and maternity and risks to health. The policies do not specifically target women at childbearing age, however reducing obesity results in health benefits for people with this protected characteristic
Race Neutral or positive – some ethnic groups have a higher prevalence of obesity and therefore the potential for health benefits due to weight reduction is bigger. However, the policies do not specifically target children of any ethnicity. Moreover, as the cause for the differences in prevalence as measured against race are difficult to measure, we are unable to accurately predict to what extent any ethnic minority group may benefit from the policies
Religion and belief Neutral
Sex Neutral
Sexual orientation Neutral
Marriage and civil partnership Neutral

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