With the implementation date fast approaching, GS1 UK has partnered with leading trade bodies, the Food and Drink Federation (FDF) and the British Retail Consortium (BRC), to provide expert guidance and help businesses prepare.
Our recent webinar featuring Andrea Martinez-Inchausti, the BRC’s deputy director for food policy, and Louise Allen, senior executive of diet and health at the FDF, covered various aspects of the upcoming regulations that affected businesses will need to consider, including;
- Whether your business will be liable
- Clarifying the scope of the regulations
- How to identify if your products are in scope
- How to calculate the nutrient profiling model ‘HFSS’ score
Watch all of the webinars on this topic here.
All submitted Q&A from the first webinar
1. Can products in a meal deal or 'dine in for 2' be placed on gondola End / End of aisles?
No. Meals deals are exempt from the provisions on volume promotions but the products in the deal are not exempt from the provisions restricting placement in certain areas of store and online.
2. How long does a fixture/gondola need to be in order to be classed as an 'aisle' (rather than a single fixture/gondola) and for the 'aisle end' restrictions to apply?
Timing is not a factor which determines whether a feature is an aisle and therefore the end of it is restricted, or an island, which are not restricted by the Regulation. Location, shape, size are some of the factors which will determine this.
3. Why is the cafe not in scope?
This is probably a question for DHSC. We understand the Government acknowledged the strong presume on the out of home industry had been under during COVID and did not want to add to it.
4. Is the landing page of a website where there is an offer like - Sign up to get 10% off - within scope?
The reference to ‘landing page’ was part of the version of the draft Regulation which DHSC consulted on at the end of 2020. This reference did not make it to the final Regulation. The Regulation refers to the homepage of a website, which is usually the first presentational or public page in a company’s website.
5. Sorry, I'm confused by the example given of the doughnuts in box. If we send a tray of frozen products in and the customer packs them into a box in store post defrost are these within scope?
All pre-packed doughnuts are in scope. Doughnuts sold loose or prepacked for direct sale, are out of scope. The products described in the question seemed to be prepacked for direct sale.
6. We manufacture chocolate and toffee apples sold in chilled produce, prepacked in major retailers. Which category do we fit in?
We believe these are in scope under category 4 – confectionery.
7. Our product is pizza bases that are not topped would it be cat11?
DHSC’s guidance make it clear that pizzas bases are not in scope.
8. If our products are in scope for Cat 2 savoury snacks, but are excluded due to being salted nuts and nut products, do they have to also be uploaded onto the ProductDNA website or is it only product in scope such as extruded snacks that have to be shared on the website?
You will need to check with the retailer(s) you are supplying to.
9. How can we check if ready roll pastry is within the scope? Thank you
We believe roll raw pastry is out of the scope of the Regulation.
10. As I can understand, wine is not in scope, right?
Correct. Drinks with an ABV above 1.2% are out of scope of the Regulation.
11. Would a hummus dip with tortilla chips be in scope? Normally sold in chilled area in the FTG section?
This is not a straightforward product. Under the heading ‘NPM scores for packaged products of multiple items’, DHSC’s guidance. Example 1 covers - specified food + non-specified food packed together as one product intended to be eaten together and gives the example of a ready meal. A prepacked product such as a Thai or India ready meal may contain a curry dish and a rice side dish as a single ready meal falling under schedule 1. If either the curry dish, the rice dish or the ready meal as a whole has an NPM score of higher than 4, then the whole prepacked product would be subject to the promotion restrictions.
This paragraph seems to imply that irrespective of the fact the product is aimed to be consumed together, each element is to be considered individually, when presented separately in the packaging.
We do not agree with this view and have challenged it with DHSC. We are awaiting a response. Our understanding would have been that this product is out of scope, but based on the rationale described above, the tortilla chip element of it could trigger it in scope.
12. Hi, one of the examples in the first slide that would be restricted under the new guidance was Buy 6, save 25%, a promotion most associated with wine and BWS. However, BWS is excluded from this? So they could still run this promotion?
All alcohol drinks with an ABV above 1.2% are out of scope, therefore a Buy 6 save 25% promotion on these products will still be allowed under this Regulation. If this type of promotion is, however, used for other type of products, e.g. yoghurts, the business will need to make sure they are all non-HFSS.
13. I am based in Aberdeenshire and we have had various requests from customers on the HFSS legislation. As we are based in Scotland and selling in England we would need to follow English rules or as we are a Scottish company are we exempt?
DHSC’s guidance state ‘The restrictions apply to all businesses that sell food and drink to England, not dependent on whether the business itself is registered in England’.
Furthermore, the provisions apply at retail level. The size or location of a manufacture supplying a retailer do not trigger any exemptions.
14. Is there separate legislation for Scotland for HFSS?
The current provisions only apply to food sold in England, but the Scottish Government has expressed the intention to introduce legislation on the same issue.
15. Are nuts in scope or not?
DHSC’s guidance states that ‘raw, coated, roasted or flavoured nuts and seeds (or mixes of these products – for example, a mix of nuts and seeds) are not in scope of the Regulation.
16. Pastries are out of scope as mentioned in the slide but earlier slide showed mince pies as an example. Wouldn’t mince pies fall under the pastries category?
Apologies for the confusion, the slide has been amended. Savoury pastry products are out of scope, but sweet pastry products are in scope.
17. If anything 'in pastry' is not in scope, would that include fruit tarts and chocolate tarts In a pastry base?
See answer to question 16. Fruit and chocolate tarts are in scope of the Regulation.
18. Can an instore bakery not classed as prepack be sold at the front of store on tables?
Products sold loose or prepacked for direct sale are not in scope of the Regulation, they can therefore be placed in the restricted areas in-store, including the store entrance.
19. We sell coffee pods, some have added sugar in them, are these exempt or fall into category 1?
We understand that coffee products, including pods, with added sugar are in scope of the Regulation. Coffee and tea sachets and pods are the only products in category 1 – drinks, for which the guidance does not specify that only ‘with added sugar’ products are in scope. We understand this is an oversight and are waiting for DHSC to confirm it. It would make sense, and it would be consistent with other products, if products with no added sugar, would be out of scope.
20. Does this legislation cover N. Ireland?
No, this Regulation only applies in England. Northern Ireland is the only British country which has not publicly stated whether they will be looking at legislation on this issue.
21. We manufacture ambient long life mini doughnuts; I would like to understand which category this would fit in?
Doughnuts are covered in category 6 – cakes and cupcakes.
22. Would oil popped Popcorn be under category 4 scope?
Savoury popcorn is in scope of category 2 - savoury snacks. Sweet popcorn or sweet & savoury popcorn is in scope of category 4 – confectionery. Plain kernels are out of scope.
23. Would you mind clarifying if the crunchy mushrooms would be considered in scope?
We believe they are likely to be.
24. Are all BRC members committed to implementing the BRC guidance on HFSS; rather than proliferating differences in interpretation.
Yes. All retailers have been involved in the development of the document. They will be using it and asking their suppliers to use it. They all want to avoid different decisions being taken. However, retailers are responsible for compliance, and they might have a different view on whether a specific product is in or out of scope.
25. Are filled fresh pasta (e.g. ravioli) and fresh unfilled pasta (e.g. spaghetti) in scope?
Filled pasta is in scope – category 13, fresh or ambient unfilled pasta is out of scope.
26. If you have a combination single serve product (for example, all dried fruit and nuts which is out of scope- But with some chocolate which is in scope but making up less than 35% of the total product) would this total product be in or out of scope?
We believe the presence of chocolate in the product will trigger it in scope.
27. Would breaded party food be in scope?
The answer to this question is not straight forward. The general principles in category 13 state that ‘this category is generally intended to cover those products that are to be consumed as the main meal’. Party food is not intended to be consumed as a main meal and therefore most of it would be out of scope. However, this category includes in its scope breaded and battered products such as fish fingers, fish cakes, chicken nuggets and breaded meat substitutes. These products are usually regarded as meal centres. If your products are not intended to be consumed as a main meal or a meal centre, they are likely to be out of scope.
28. Would young child formula in scope? baby food or general food?
DHSC has clarified that products covered under Infant formula and Follow-on formula Regulations, The Processed Cereal-based Foods and Baby Foods for Infants and Young Children Regulations, are out of the scope of the promotions and product placement Regulations.
29. Key exclusions of category 1 are: drinks without added sugar, including milk (as defined in regulation 7 of SDIL) ` this is what is referred under the example exemption categories. And the young child formula contains lactose which is sugar. Is this considered added sugar or natural sugar in this case? Thank you for clarifying.
See answer to question 28.
30. Are burgers in scope for Ready Meals?
Burger patties are out of the scope. A burger in a bun sold pre-packed is in scope.
31. Is an all day breakfast in a can within scope?
Yes, we believe it is covered in category 13.
32. Bottled wine with 14% or 20% alcohol is in the scope?
Alcoholic drinks with an ABV above 1.2% are out of scope
33. Can I clarify the point on vegetarian alternatives? Are breaded/processed vegetarian alternatives within scope (e.g veggie nuggets) but plant-based meat alternatives - such as vegetarian ham/bacon/chicken etc. out of scope?
Vegetarian alternatives of meat/fish-based products, which are in-scope, would be in-scope.
34. If there are more examples available for the what in scope list?
BRC has published some guidance which produce further examples and information
https://brc.org.uk/media/680025/brc-hfss-guidance-products-in-out-of-scope-june-2022.pdf
35. How about Meal kit with wrap and sauce? is it a meal center?
DHSC guidance states that meal kits are out of scope
36. if noodles (pack and cup) falls in meal center or are in scope.
DHSC guidance clarifies that noodles in cup are out of scope
37. if tinned beans are in scope?
We believe a tin of baked beans is out of scope
38. So can I assume that meat products, as sausages, pre-packed, without sauce is not in scope?
That is correct, unprocessed meat, most meat preparations and sausages and burger patties are out of scope.
39. What if we give wrong scope information and share with retailers, do retailers or productDNA review this information before implementing changes?
The retailers review all information shared with them as they are responsible for compliance with the provisions of the law. They need to make sure they understand which category each product falls in; is it an out-of-scope product category, a product in a specified category but the specific product is out of scope, in scope but not HFSS or an in-scope and HFSS product. While retailers will be heavily reliant on the information provided by branded retailers, they may at times want to verify this information.
40. Are frozen raw poultry joints with Stuffing or Glaze in scope?
We believe most raw stuffed poultry joints will be out of scope. Regarding the glazing, DHSC’s guidance states that glazed and marinated products are out of scope, while products in a sauce are in scope. This terminology is often used interchangeably, so to establish whether the product is in out of scope, DHSC’s guidance state that a marinate or glaze differs from a sauce as it is intended to be absorbed into the food before or during cooking so that, after cooking or heating the food product, no significant liquid remains to be poured over the food.
41. We are producing pizzas. a pizza weighs 400g, certainly in scope
Yes, pizza is in scope if HFSS
42. For frozen potato product, it's not very clear
DHSC’s guidance includes a positive list of potato products covered by the Regulation. The products are listed are covered irrespective of whether presented/sold frozen, chilled or ambient.
43. Would a Crispy Duck and Pancake product with duck pancakes and sauce be in scope?
Yes, we believe this product is most likely in scope.
44. Are pizzas e.g. 40g each in a 400g packaging in scope, too?
We believe all pizzas, irrespective of size are in scope if HFSS
45. Can I double check, Garlic Bread and Cheese topped garlic bread products are not within scope?
DHSC’s guidance makes it clear these products are out of scope.
46. In which category muesli bars, fruit bars and protein bars can be classified? Would it be Cakes? Biscuits? Or what would you propose?
Cereal bars, including muesli bars are covered under category 7 ‘sweet biscuits’. Not all fruit bars and protein bars are in scope but those which are, are covered in category 4 ‘confectionery’.
47. Will the restrictions online sales apply to self-service check out or are those covered separately?
Yes, the same principles would apply. For example, offering a chocolate bar for sale just before the customer is about to pay, is not permitted.
48. In which categories does the exemption around not being 'consumed as a main meal apply' i.e. only Ready Meals or more? If just Ready Meals, why the inconsistency vs other categories with smaller consumption occasions i.e. sweets/confect; bite-sized ice cream?
This exemption is only referenced in category 13. We understand that that bite size versions of other products, e.g. desserts, are in scope.
49. Which of the criteria takes priority? For example, would a PRICE PROMOTION of a chocolate bar on gondola end be out of scope because it isn't a volume (multibuy) promotion - even though the product and location would be in scope?
The provisions are not an either or, both the volume promotion part and the location part had to be complied with. In the example, irrespective of whether the chocolate bar is not volume promoted, it is part of the confectionery category and a HFSS products and therefore it cannot be placed in a gondola end. This would also apply if the product is full priced.
50. If we supply small Deli Shops and Farm Shops, are our products in scope?
Retailers with less than 50 employees and shops with a flow space below 185.8 square metres (m2) (or 2,000 square feet (sq ft)), are out of scope. If the retailers you are supplying fit under either one of those exemptions, they would not be restricted to place your products in all areas of store or volume price promote them.
51. According to the Government guidance, the principle underpinning which products should be deemed in scope within Category 4 (Confectionary and Sweets) is that it relates to ‘All products predominantly found in the ‘confectionery’ aisle, including chocolate and sweets, and ‘free from’ confectionery products.’ Does this mean that medicated sweets like Halls and Soothers are out of scope?
Product placement is one of the criteria which establishes if products are within this category. We believe medicated sweets are out of scope and although there is nota legal definition, we believe these to be licensed products.
52. Do you think BWS will feature in the scope in the near future?
This is probably a question for DHSC. In our discussions with them, the future inclusion of beer, wines and spirits has never come up.
53. We produce dehydrated ready meals based on pasta or rice with seasoning sauce in powder. They must be cooked for 10/15 minutes, at home, with the addiction of some water (boiling or not). Are they in or out of scope?
We believe they are unlikely to be in scope. Similar products, such as pot noodles are out of scope.
54. Have BRC aligned with their PAP?
We have discussed many of the difficult products with primary authorities. They are aware of our guidance, and we will work with them over the next few month to discuss and clarify queries on other challenging products.
55. Would a salmon portion with a sachet of marinade poured over after heating in a microwave would be in scope Cat 13?
We believe that if the sachet is indeed a marinate and not a sauce, the product will be out of scope. However, the term marinate, glaze and sauce are often used interchangeably. To establish whether the product is in out of scope, DHSC’s guidance state that a marinate or glaze differs from a sauce as it is intended to be absorbed into the food before or during cooking so that, after cooking or heating the food product, no significant liquid remains to be poured over the food.
56. Are pickled products in scope? for example.. Beetroot, Onions, Cabbage, ect..
These products are out of scope
57. Do Meat alternatives fall in scope?
Vegetarian alternatives of meat/fish-based products, which are in-scope, would be in-scope.
58. Are sugar and sugar syrups within the scope?
They are out of scope
59. When the nuts are spiced, or fried ..., are they in scope or not in the HFSS? Are they part of the 2 salty snack categories? Does the same thing go for seeds?
DHSC’s guidance clarifies that raw, coated, roasted or flavoured nuts and seeds (or mixes of these products – for example, a mix of nuts and seeds) are out of scope.
60. It's not clear, in the slide I read Out of scope Fruit, veg e nuts (including salted). Please can you clarify?
DHSC’s guidance clarifies that raw, coated, roasted or flavoured nuts and seeds (or mixes of these products – for example, a mix of nuts and seeds) are out of scope.
61. How will HFSS regulations success be measured?
This is a question for DHSC
62. As we are aware, chocolate coated nuts are HFSS but yogurt coated nuts do not fall within the regulations. Is this correct? And if so if the yogurt has inclusions in it, like a biscuit crumb is this in or out of scope?
DHSC’s guidance states that sweet coated nuts (other than chocolate-covered nuts) – for example, honey coated, syrup coated, carob coated, sweet chilli flavours, and mixes of sweet and salty or savoury, are out of scope of the provisions of the Regulations.
63. Dry pasta made of durum wheat semolina is in scope or not, please.
We believe all unfilled pasta is out of scope of the provisions of the Regulation.
64. If I have a En Croute (chicken, bacon, cheese & pastry) is this out of scope? But a Hunters chicken (chicken, bacon, cheese and sauce sachet) is in scope?
Yes, we believe this is correct.
65. Where does sports nutrition fit within the categories? As they are fortified to a high level, does this exempt them? Particularly as they are often sold in the “pharmacy” area of stores.
Each product will need to be assessed individually
66. Will a product like poppadums which is intended to be part of a meal be in scope?. People do not tend to consume these as crisps.
The main criteria to establish whether a product is or not in scope of category 2 – savoury snacks, is whether the product tends to be consumed as an alternative to crisps. If it is not, the products is most likely to be out of scope.
67. We produce in Northern Ireland but supply to England, do we need to comply with the regulations?
The provisions of this Regulation apply to products sold in England, irrespective of where they are manufactured.
68. Breakfast bakery are within scope. Would it be correct to assume rolls or brioche burger buns, baguettes all pre-packed fall outside scope of the regulation?
DHSC’s guidance state that all savoury breads are out of scope of the provisions of the Regs. However, brioche buns contain sugar, and we believe they are in scope of the provisions of the Regulation. We understand this has been carried forward for the classification used in PHE’s sugar reduction programme.
69. What about Vegan Burger mixes?
Burger patties are out of scope, and we believe the same applies to plant alternatives
70. roasted and salted nuts are in the scope?
DHSC’s guidance clarifies that raw, coated, roasted or flavoured nuts and seeds (or mixes of these products – for example, a mix of nuts and seeds) are out of scope.
71. Are cake decorations in scope for cat 4? We supply icings, frostings, sugar decorations, chocolate decorations to all the retailers. I believe everything could be excluded except the chocolate decorations.
DHSC’s guidance states that all cake decorations, including icing, are out of scope.
72. Would Potato Salad fall into scope?
DHSC’s guidance specifies potato salad is out of the scope of category 12 – potato products
73. Marinade meat and glazed meat, show as exempt from the scope. Can you explain in terms of the sauce being absorbed into the meat a little more.
DHSC clarifies on their guidance that a marinate or glaze differs from a sauce as it is intended to be absorbed into the food before or during cooking so that, after cooking or heating the food product, no significant liquid remains to be poured over the food.
74. How does the legislation apply to sales made through social media platforms? I sell HFSS products through a Tiktok shop
The online provisions of the Regulation apply to online marketplaces, which are described as any software (including a website, part of a website or an application) that is used to offer the qualifying business’s products for sale to consumers. Qualifying business’s products can include any product sold by a qualifying business, including own brand and other branded products. So, a TikTok shop is a marketplace and would be in scope. However, the Regulation exempts from its scope businesses with less than 50 employees, so you may be exempt on those bases.
75. Morning Goods is a slightly confusing category. Plain bread is out, but what about savoury flavoured bread. Like onion or garlic?
Having had a conversation with DHSC about this category, we understand that savoury bagels, savoury scones and savoury hot cross buns are in scope, but any other savoury bread, including bread with additions is out of scope.
76. Does aerosol cream count as a dessert?
Category 9 – dessert and pudding, specifically exempts creams such as whipped cream and flavoured or sweetened creams. We believe this includes those presented as aerosols.
77. Referring to Category 4, would be sweets like Jellies in scope?
Yes, jelly type sweets are in scope of category 4 – confectionery.
78. Do FSDUs / PFU / Shippers count as 'island displays' and products on them are therefore out of scope if outside a restricted area?
Each display will need to be assessed on a case-by-case bases; however, we believe the majority of free-standing display stands, shippers, etc. are to be regarded as ‘inland displays’ and therefore not considered one of the restricted areas of placement.
79. Frozen potato products as Hash browns are in scope? How to know if it's HFSS?
DHSC’s guidance includes a positive list of potato products covered by the Regulation. The products are listed are covered irrespective of whether presented/sold frozen, chilled or ambient. You need to apply the nutrient profiling model on nutrition information as sold to calculate whether this is HFSS. A score of 4 or more is HFSS.
80. Are Scotch Eggs in scope?
We believe they are out of scope
81. Can you please confirm whether honey is out of scope, also fish oils, either as liquid or in capsules?
Honey is out of scope. Fish oil supplements are also out of scope.
82. Do you have a summary of when the various rules and regulations will be implemented? Thank you.
The location, both in-store and on-line, restrictions must be complied with by 1 October 2022. The ban on volume promotions must be complied with by 1 October 2023.
83. Can you clarify prepacked savoury nuts and fruit and nuts? Are these out or out of scope and they are not covered in chocolate.
DHSC’s guidance states that ‘raw, coated, roasted or flavoured nuts and seeds (or mixes of these products – for example, a mix of nuts and seeds) are not in scope of the Regulation. They also clarify that fruit-based snacks such as dried fruit, fruit crisps or chips are also out of scope. So a mix of the two will also be out of scope.
84. Non-Alcohol Sparkling Juice Drinks
Yes, they will be in scope of category 1 – drinks.
85. As a business selling on Tiktok, I make Tiktok videos promoting my products. Will these still be allowed after the new legislation comes in? Tiktok sometimes gives my customers multibuy discounts that I have no control over. Who is the party that is responsible for ensuring that these are not applied going forward, is it Tiktok?
This is a tricky question and one on which you will need to seek legal advice. DHSC’s guidance give some consideration to food being sold through aggregators but does not include any information on food being sold through platforms.
86. Is smoked salmon included within the scope. It contains high salt level which is needed to keep the product safe for consumption.
We do not believe smoke salmon is in scope of the provisions
87. Is only paid for online advertising within scope and how is paid for been defined?
For the further advertising regulations (that come into force on 1 Jan 2024), only paid advertising online is in scope. The precise definition has not yet been shared, but will include gifts or incentives as payment.
88. Is only paid for online advertising within scope and how is paid for been defined?
For the further advertising regulations (that come into force on 1 Jan 2024), only paid advertising online is in scope. The precise definition has not yet been shared but will include gifts or incentives as payment.
89. When is the NPM guidance going to be updated?
This will be updated by DHSC, but no timescale has been given. FDF and BRC have been in touch with additional questions and suggestions to improve the guidance.
90. Do you have a summary of when the various rules and regulations will be implemented?
The HFSS location restrictions will come into force on 1 October 2022. The restrictions on HFSS price promotions will come into force on 1 October 2023. The further HFSS advertising restrictions (9pm watershed and all paid for advertising online) will come into force on 1 January 2024.
91. Is it per 100g raw or cooked?
The NPM score should be calculated on your nutritional information 'as sold', except for products that need to be reconstituted before consumption, which will use nutrition information as per the suggested-on pack instructions for making up.
92. There are two methods of testing for AOAC Fibre (dependant on detection of Insouble Fibre), has which method been used been defined, as this is creating some confusion as some labs are offering this method and understandably our NPD team is confused by this.
The recommended method is the AOAC method. When the profiling model was developed in 2004/5 both methods were in use, but for consistency with Europe and the USA, the Scientific Advisory Committee on Nutrition, SACN,[33] and the EU and the UK government now recommend AOAC.
93. Can % Rapeseed oil be included in fruit, veg and nuts?
This is not counted.
94. How is the relation between sodium and salt (normally shown on Nutrition information labels)?
1g of sodium is equivalent to 2.55g salt, so multiply your sodium value (in g) by 2.55 to get salt content (in g)
95. I sell "mystery" chocolate boxes online, each containing a random selection of chocolates from different brands. Each box contains different contents. How does the calculation apply to mystery/selection boxes with unique contents?
Consistent with the Government guidance on hampers, I would recommend a precautionary approach - so if one component is HFSS then the whole content of the box is classed as HFSS. Unfortunately if the products you are selling are chocolate they will most likely fail the NPM model.
96. Would FDF make their NPM calculator available to non-members for a small charge?
Please get in touch with our membership team at: https://www.fdf.org.uk/fdf/about-fdf/reasons-to-join/
97. I believe that when calculating the veg/fruit % it says you use the government’s 5 a day scheme. is it correct that if you use the government’s 5 a day scheme and the product has been deep fried then it means you cannot consider it as a portion?
The definition of minimally processed includes cooked, dried, peeled, sliced, tinned, frozen, juices and purees, so you can count the fruit / veg / nut contribution even if the product has been deep fried – you just can’t communicate to the consumer that the product is a contribution to your 5 a day.
98. what about freeze-dried fruit whether whole or ground?
We are seeking information from DHSC on this.
99. Is date paste counting as a fruit in the scoring?
Yes – but we recommend you count the weight only once.
100. Can you count sunflower & pumpkin seeds as well?
Seeds are not included in the fruit / veg / nut calculation
101. What about tomato puree in a tomato sauce on say pizza?
The weight of tomato puree in the product should be multiplied by 2 to account for the concentration of nutrients. The weight of the tomato content in the sauce should be counted just once if its not dried or concentrated.
102. Under category 11 the exclusions for pizza are 'loaded' pizzas. Is there a definition for loaded pizza? If we can every pizza loaded then are all exempt
We understand the reference to ‘loaded’ in that category relates to garlic bread and not pizza. All pizzas are in scope.
103. Does fruit juice that is from concentrate, but is re-constituted to the definition of the Fruit Juice and Nectars legislation, counted as "fruit"?
Yes – the technical guidance specifically states that juice made from concentrate Is minimally processed.
104. when i have a spiced mix of nuts , fruit & seeds , how the seeds can be considered in the calculation ?
Seeds are not included in the fruit / veg / nut calculation
105. What is the definition of a dried nut, vs a non-dried nut?
There is no available information on this, so I would advise treating all nuts the same and just counting their weight once - the 2x multiplier for fruit and veg is related to the 5 a day guidance where a smaller amount of dried fruit equates to a larger weight of fresh fruit and vegetables.
106. Providing the FVN is over 40% - how do you know what socre to give it in the calculation?
More than 1 but you mentioned that the bar would score 5 point.
There is criteria in the technical guidance which breaks down the scoring for fruit / veg / nuts. You can score anything from 0 to 5.
107. What about Spirulina, Chlorella, that are only available as powders, and Green grasses (Barely and Wheat grass)? Can they be counted as Veg?
There is no mention of Spirulina, chlorella and green grasses on the guidance, so they can not be counted in your F/V/N calculation - see https://webarchive.nationalarchives.gov.uk/ukgwa/20101210175432/http:/www.food.gov.uk/multimedia/pdfs/nutprofpguide.pdf
108. What about natural nutritional variations of ingredients (e.g. meat) that influence the nutritional values that are necessary for the HFSS-score? Is there a tolerance?
Example: You can calculate with the mean of nutritional values of the ingredients but for example the fat-content (and so the SAFA and energy) can vary and maybe results in different/higher points for HFSS and in worst case the product is a HFSS product and not a non-HFSS product anymore just because there is more SAFA inside than calculated with the mean-SAFA-content.
There is no official guidance on this, so we are seeking information from DHSC. In the meantime, we would advise using the nutrition information on pack or from McCance and Widdowson.
There is a certain level of tolerance allowed for nutrition labelling, so it is unlikely the primary authority would take issue if you can prove you have calculated the NPM scoring to your best of your knowledge and the information that is available to you.
109. What about Chia seeds, Flaxseeds, and what about their milled versions?
Seeds are not included in the fruit / veg / nut calculation
110. I am confused about the calculation for the Nakd bar. Some nuts were considered dried FVN but cashews were non-dried FVN? How do you define both?
There is no available information on this, so I would advise treating all nuts the same and just counting their weight once - the 2x multiplier for fruit and veg is related to the 5 a day guidance where a smaller amount of dried fruit equates to a larger weight of fresh fruit and vegetables.
111. Would fresh pasta which needs to be cooked before consumption be calculated as sold or as consumed? Nutrient content as consumed is much lower once cooked due to the uptake of water.
You need to calculate the NPM score based on as sold data for this type of product.
112. Can we stay with declaring "as consume" nutri values on pack, even though, the "as sold" values would be used for HFSS calculation?
Yes of course - as long as you ensure the retailer has your overall HFSS status for as sold
113. For meat products - if retailer ask to display nutrition 'as consumed' supplier wont have as sold sets of data. can we use ' as consumed'
We would advise seeking the 'as sold' information from your supplier. If this is not provided see advise from your primary authority
114. Can you use calculated as sold nutritional information or does this need to be from external sources?
This information for ‘as sold’ will be available from your supplier.
115. TThe NPM calculation details Nuts on both sides - with and without the multiplier
There is no available information on this, so I would advise treating all nuts the same and just counting their weight once - the 2x multiplier for fruit and veg is related to the 5 a day guidance where a smaller amount of dried fruit equates to a larger weight of fresh fruit and vegetables.
116. Why are savoury pastry products not in scope? It makes no sense
This is really a question for DHSC. Their guidance states the criteria they have used to establish which products are in scope includes products which:
• have been identified as being the biggest contributors to children’s sugar and calorie intakes
• are heavily promoted
• are therefore the categories of most concern for childhood obesity
117. Why have we started HFSS when there is still so many things that are incorrect and out of date. Should we wait until everything is defined before we start work and then need to change things? Roasted and salted nuts are in the scope?
Retailers are required to be compliant with the provisions of the law by 1 October this year (2022). Ahead of that date, they need to make sure everyone of their stores in England is formatted in a way which enables the right products to be displayed in the correct areas of store, they need to work on the algorithms that underpin how online products, banners and pictures are displayed, and train colleagues in branches. This takes time, and therefore it is important that suppliers provide retailers with the product scores and category information as soon as possible to allow for all the planning they need to do.
118. We manufacture a cheese product which is sold with a savoury snack to dip - the cheese is obviously out of scope but the snack would be within scope. Would the overall product be in scope? We have been informed that these would be exempt.
The main criteria to establish whether a product is or not in scope of category 2 – savoury snacks, is whether the product tends to be consumed as an alternative to crisps. If it is not, the products is most likely to be out of scope. The BRC guidance includes a list of criteria which will help business work though that decision.
119. Are herbs such as parsley counted as fruit and veg ?
Parsley is classified as a leaf vegetable and does count in the F/V/N scoring. Mustard and cress also count. Other herbs do not count.
120. We perform nutritional analysis on 3 packs 'as sold', do we average out the nutrients over the 3 packs to get the score? And not just use 1 pack analysis.
We recommend you use the average, as if challenged, you can prove the scoring is based on more accurate data than from just one product.
121. We manufacture fresh seasoned beef burgers are these in scope as category 8?
Burger patties are out of the scope. A burger in a bun sold pre-packed is in scope
122. What about Cacao nibs, will it be nut or a seed, or fruit
Cacao nibs cannot be classed as a F/V/N
123. Where does the responsibility for proving in scope out scope lie, and how will this be policed??
Retailers are responsible for compliance with the provisions in the Regulation, namely not run volume promotions on specified foods and not placing specified foods in restricted areas in-store and online. The only way for a retailer to comply is to obtain accurate branded information from suppliers. Retailers are executing their due diligence by asking suppliers to provide the NPM score and product classification for each product supplied. We believe it is the supplier’s responsibility to supply that information accurately. Retailers make sense check scores using similar products. Additionally, if a retailer received a challenge which relates to a branded product, they will get in touch with the supplier to understand their decision and score provided.
124. What about Cacao powder? We can’t use this product otherwise (as Cacao pods)
Cacao powder cannot be classed as a F/V/N
125. Are savoury prepacked breadsticks and crostini crackers etc exempted?
Each company will need to establish whether these are consumed as alternative to crisps or not. The BRC guidance includes a list of criteria which will help business work though that decision.
126. The retailers are asking for HFSS for all products even if they are not in scope, why are they doing this?
Retailers are responsible for compliance with the provisions of the law. They need to make sure they understand which category each product falls in; is it an out-of-scope product category, a product in a specified category but the specific product is out of scope, in scope but not HFSS or an in-scope and HFSS product. While retailers will be heavily reliant on the information provided by branded retailers, they may at times want to verify this information. The level of data being return by brands is low and this makes it impossible to understand if data has not been submitted because the product is believed to be out of scope, if the manufacture is having difficulties, or any other reason.
127. Why micronutriets contribution is not considered in the Nutrient profiling, which are known to have EFSA Health claims?
When the model was developed the protein scoring was included as a marker of iron, calcium and long chain n3 polyunsaturated fatty acids. The fruit / veg and nut scoring will take into account vitamins and minerals contained in these products.
128. We sell olives . depending on the stuffing of the olives, the numbers vary so we are very close to the margin. What can we do? Or are the olives in general excluded?
Olives are out of scope of the promotional restrictions. They are only in scope of the existing advertising restrictions which relate to children’s media.
HFSS webinar open Q&A questions
129. Are food supplements in scope, for example, Vitamin Supplement Gummies?
General food supplements are out of the scope from the provisions of the regulation. There is vitamin and mineral supplements that take the shape of confectionary are in scope. This has been challenged with the department of health as they aren't merchandised as confectionary. This is being reveiewed currently.
130. Although the guidance states that nutritional scores should be calculated on an 'as sold' basis 'in most cases', if a product absorbs water during cooking which has a dramatic impact on the nutritional data it seems only logical to use 'as consumed' data. The HFSS score otherwise does not reflect the nutrients being consumed.
The guidance says you have to calculate the NPS score as sold in all cases except for things that have to be reconstituted before consumption such as custarrd powders, jellys and cake mixes for consistency. It's helpful for the consumer to see the nutritional information on the product once it has been cooked or as consumed.
131. When will this be implemented?
1st October. Volume promotions are 1st October 2023, although some retailers are putting that into effect this year. The implementation to reformat stores is being discussed for further time on the implementation plan. This is for England only. If you manufacture in Wales, Scotland and Ireland then you are in scope if you sell in England.
132. There is a lot of confusion in regard products that come with sauce/glaze. Due to the wording of legislation and supporting interpretation documents its hard to interpret what 'considerable amount of liquid' means. is there a % value of sauce which we can use a a guide?
In the final guidance the Department of health have stated that marinades and glazes are out of scope. If after cooking a considerable sauce is raw that can be added over the product (sauce) then this is in scope. If juices from cooking the product are left and used to make an additional sauce such as a gravy then this is out of scope.
133. How to calculate nutritional information fruit and vegetable in a product?
View Louise’s recording from the original webinar
134. What classes as a 'dried' nut (as a multiplier of 2 is added to this). Do (whole) freeze dried fruits & veg count and have the multiplier of 2 attached to them. IF they are then ground are they then out of scope? and what is the level of data do we need in order to support whether a product is out of scope (e.g. savoury biscuits)
Freeze dried fruit counts but if used as a powder then it's not classed as minimally processed and you can't count them. In terms of nuts you should count them all once as fresh.
135. Application of NPM calculations - liquid medium - when reconstitution is needed before consumption.
Just calculate as consumed if it has to be reconstituted
136. As far as I can see the products we supply, Cheese and cheese with added ingredients, do not fall within the scope of the HFSS legislation, do you agree?
Yes, cheese is out of scope and cheese with added ingredients such as cranberries are out of scope.
137. Based on the mention of generating a new barcode for products that change their recipe. Considering that by changing the recipe, there will be a change in the packaging, my question is this: would not it be better to add a logo on the front of the packaging where it is mentioned that the product is in/out of scope? This would help consumers make their own decision when purchasing the product.
HFSS is an industry led initiative and legislation and although consumers are starting to hear about it it's not part of the vernacular so there is no drive for labelling to be on products. We have looked at the concept of adding something on the label as there is more pressure on store colleagues to help them manage the legislation.
138. Are the regulations online live from October as well?
Yes
139. Our company is based in Northern Ireland but we supply to retail chains etc. in England, Scotland? How does the new legislation affect our company?
If you are selling into any retailer in england you are affected. Manufacturer is in scope by providing food to a retailer. If the retailer is in scope you must provide the information. The size of the business is based on the retailer and not the manufacturer.
140. Please can you confirm if Sandwich Fillers and Dips are within scope and if so which category they would fall under?
Out of scope - not one of the 13 categories. Sandwich fillers are out of scope for Cat13.
141. There are two tests for AOAC, one which includes Soluble only and one which includes Insoluble. Is there any guidance on which method is to be used, as concerns about testing and incorrect results been used to both calculate HSSF and report nutrition on back?
The guidance says use the AOAC method
142. We make Indian curry sauce, mango chutney, lime pickles, pasta sauce and other table sauces for the JS. Does our products fall under HFSS category?
Table sauces are out of scope and not covered in the 13 categories
143. Will Sainsburys continue to feature Butter, Spreads and Cheese promotions on Plinth End / Feature Space?
Can't answer, these products aren't covered in scope so it's down to the retailer as they are not restricted.
144. Yes, a question I asked during the 1st webinar, which was left unanswered. Will Brioche Burger Buns fall within the scope of the HFSS legislation and restrictions (breakfast bakery has been confirmed as in scope however brioche burger buns are not usually consumed as a breakfast option) ? Single serve pains au chocolat and croissants as well, will they fall within the scope of this HFSS legislation?
We believe they are in scope and had some discussions as they contain sugar in their composition and makes them equivalent to other morning baked goods. Secondly the criteria used by public health england on sugar reduction and in that brioche is in scope. They are not consumed for breakfast but many are stuffed with bacon for bacon butty's and therefore could be consumed for breakfast. Mainly it's the composition.
145. Is this in scope? A roast in a bag joint with seasoning/marinade/glaze where excess juices will form, a suggestion only is placed on the pack to utilise the cooking juices for a gravy.
Naturally any fresh meat when cooked will reduce juices and these could be used for a sauce but are not in scope if it's already part of the meat. If the product as purchased comes with a glaze/sauce to be added at the end of the cooking process then it will be in scope.
146. What about charcuterie, such as cold meat (chorizo, salami, etc)?
Out of scope
147. SDIL compliant fruit juice based soft drinks sweetened only with stevia and fruit juice (no added sugar) - in our out of scope?
The department of health has done a disservice to the soft drink levy. The document states if you have a soft drink and it contains added sweetener or sugar, if the product is HFSS it will be in scope.
148. As a supplier, is providing HFSS scores to retailers based on "as sold" nutrition a requirement or just advised?
It's a requirement
149. Are instant noodles with seasonings made up with water within the scope?
Out of scope, specifically listed outside of Cat 13
150. We use concentrated fruit juices, which has not been reconstituted up again, but is made of 100% fruit juice. Does this get treated like concentrated tomato puree and get doubled in the FV&N calculation for the HFSS Score?
The guidance doesn't talk about concentrated fruit juices. It does talk about fruit juices. It's counted if it's 100% fruit juice and count the weight once but not extracts.
151. Would a salt set be classed as in scope or out of scope?
Out of scope
152. Does the recent Kelloggs ruling also support that the NPM score should be as sold rather than as consumed?
It looks like this is the case and disappointing for Kelloggs. Sadly we will have to live with this. Even for oats the nutritional value has to be as sold.
153. Online shop in scotland how does this work for customers in england purchasing
The BRC are still discussing with Wales and Scotland as the logstics of physical stores is already difficult enough.
154. Does this regulation only consider consumed products as opposed to cosmetic / beauty products?
Food classified only as per the legal definition.
155. Are ambient freeze pops classed as in scope or out of scope?
In scope
156. Are flavoured burgers i.e cheese burger packaged with no bun in or out of scope, please.
A burger in a bun is in scope
157. Are sandwich fillers in scope?
No, they are out of scope
158. Are Protein bars out of scope or in category 4?
Some protein bars are in scope that include top line criteria relating to composition and where they are placed in store. If it includes ingredients that one associates with confectionary such as chocolate/toffee/scope are in scope. The BRC guidance has gone further and included a few more details to better understand this.
159. Jams and chocolate spreads / peanut butter - are these within scope?
Out of the scope
160. If HFSS items with high scores are within gift hampers etc would this be within scope? Would we no longer be able be able to promote gift boxes and hampers?
If there is one HFSS item in the hamper then the whole hamper will fall under HFSS and will be restricted
161. Are pre -cooked meatballs in or out of scope?
Out of scope
162. Do the rules depend on the NPM score? What is the NPM score for?
The rules do apply on the NPM score. If your HFSS score is 4 or more and you are food you are in scope. If a drink is 1 or more then you are also in scope. It must be pre-packed and covered in 1 of the 13 categories and also HFSS.