The UK Government announced that large hospitality businesses (out of home sector) will be required to display calorie labelling information on menus and food labels from April 2022 after the government consulted on calorie labelling for food and drink served outside of the home in 2018. Regulations have been laid in Parliament which will mandate all businesses in the out of home sector (cafes, restaurants, takeaways) with more than 250 employees to list calorie counts on non-prepacked food and soft drinks.
It will be required that all calorie information be displayed at “the point of choice” for the customer, such as physical and online menus and delivery platforms. The measures, which form part of the government’s wider strategy to tackle obesity, will empower people to make more informed, healthier choices outside of the home. Public Health minister Jo Churchill said the rules would “make it as easy as possible for people to make healthier food choices”.
The out of home sector is generally considered to be any outlet where food or drink is prepared in a way that means it is ready for immediate consumption, on or off the premises. The most common types of out of home food businesses include restaurants, cafes and takeaways. However, retail businesses, such as supermarkets, are growing contributors to food sold for consumption on the go.
Food and drink that is prepacked is required to display nutritional information, meaning consumers are familiar with seeing calorie content on the majority of items sold in the retail sector, such as supermarkets and convenience stores. In contrast, the out of home sector typically sells non-prepacked food and is therefore not required to display nutritional information. This makes it difficult for consumers to make informed, healthier decisions when purchasing food from such businesses. In addition to helping consumers to make healthier decisions, calorie labelling also aims to encourage businesses to reformulate the food and drink they offer and provide lower calorie options for their customers.
The requirement to calorie label extends to any business with 250 or more employees (‘a qualifying business’) which offers for sale non-prepacked food or drink suitable for immediate consumption by the person who buys it.
For example, the types of businesses covered by the requirement include (but may not be limited to):
- restaurants, fast food outlets, cafes, pubs and supermarkets
- home delivery services and third-party apps selling food that is in scope
- cafes and takeaways within larger shops and venues, such as supermarkets, department stores, and entertainment venues such as cinemas
- specialist food stores, delicatessens, sweet shops and bakeries
- contract catering – for example, for events and canteens (see mass catering subsection below)
- domestic transport businesses including planes, trains, ferries and other forms of water transport within the UK
Franchises
For the purpose of determining how many employees a business has, and therefore whether the calorie labelling requirement applies, a business that is carried on pursuant to a franchise agreement is to be treated as part of the franchisor and not as a separate business carried on by the franchisee. Under these Regulations, a franchise agreement is seen to exist where the one undertaking (the franchisee) and another undertaking (the franchisor) agree that the franchisee carries on a business activity which includes the sale of food (the franchise business) and the food, appearance of the premises and business model are agreed by the franchisor and are similar across its franchise network. This does not apply if the agreement is limited to alcohol and the franchisee can determine what other food is provided.
Therefore, in these circumstances, franchisees carrying on trading as a business under a franchise agreement, where the sum of employees operating under the franchise are 250 or more, would be considered qualifying businesses for the purposes of the Regulations and therefore required to calorie label. It is the responsibility of the business selling the food (the franchisee) to ensure that calorie information is displayed in accordance with the Regulations.
Online Sales
The requirement extends to food that is sold on a website or mobile application, including third party delivery apps. Where food in scope of the Regulations is sold on a website or mobile application, the business responsible for that website or mobile application (the ‘remote provider’), irrespective of the size of their business, is required to display the calorie information of food offered for sale by any qualifying business. Where the remote provider offers for sale food which another business has provided, such as third-party delivery apps, the business providing the food must give the remote provider the calorie information for display on the website or mobile application.
In accordance with Article 14 (2) of the Retained EU Regulation 1169/2011, if food is sold by distance selling means, such as online or by phone, calorie information must be made available to the customer when the food is delivered. Means of providing information on delivery to the customer include enclosing a copy of a calorie labelled menu with the order or placing stickers on food containers displaying calorie information. Written calorie information could also be presented to the customer by the member of staff from the business delivering the food, provided it is clear how the written information relates to each food item delivered.
Food considered suitable for immediate consumption
This includes:
- offered for sale for consumption on the premises on which it is sold
- offered for sale for consumption off the premises and does not require any preparation by the consumer before it is consumed (preparation includes peeling, hulling or washing, cooking, thawing and heating or reheating pre-cooked food)
Food items which are not prepacked food are those which do not fall within the definition of prepacked food in article 2(2) of Retained EU Regulation 1169/2011 on the provision of food information to consumers Regulations. This includes but is not limited to food without packaging, food packed on the sales premises at the consumer’s request, and food prepacked for direct sale (food that is packed before being offered for sale on the site on which it is sold)
Exempt food
Certain categories of food sold for consumption off the premises. Exempt food in these categories incudes:
Fresh fruit or vegetables, including potatoes, provided that they are not added to other food, or sold as an ingredient in food consisting of more than one ingredient. Loose fresh fruit in a supermarket does not need to display calorie information. However, if prepared into a fruit salad, the fruit salad must be calorie labelled.
Unprocessed products consisting of a single ingredient which do not come under the fresh fruit or vegetable category above. Herbs, nuts and seeds are examples of single-ingredient items that are not considered fruits or vegetables.
Fish, meats or cheese, provided that the fish, meat or cheese is not added to other food, or sold as an ingredient in food consisting of more than one ingredient. Sliced ham, rotisserie chicken or smoked salmon from a fish or meat counter are examples of items that do not need to be calorie labelled if offered for sale for consumption off-premises. However, when fish, meat or cheese is sold as an ingredient in food, such as fish as part of a sushi platter or chicken as an ingredient in a ‘build your own’ sandwich, calorie information must be displayed.
Loaf of bread or baguette. Loaves of bread (including those with additional ingredients such as seeds or olives) fall under this exemption and do not need to be calorie labelled. However, rolls or buns do not fall under the exemption for loaves and require calorie labelling.
Food for particular audiences. Exempt food for particular audiences includes:
- food that is provided by a charity, in the course of its charitable activities, free, or for a price which is less than the cost of providing that food; or offered for sale by or on behalf of a charity, at a single event, to raise funds for its charitable activities
- food which is provided at an educational institution for pupils below the age of 18 years old
- food provided (not for payment) to patients at a hospital or other medical establishment, or to residents of a care home or other social care institution
- food served by the armed forces to a member of the armed forces outside a military canteen
- food that is served on international transport (on an aircraft, a train or a ferry) to or from a country that is not part of the United Kingdom
Other specific exemptions include:
- food which is on the menu temporarily, that is for less than 30 consecutive days and a total of 30 days in any year. This exemption provides flexibility for businesses to make use of temporary menu items to help reduce their food waste, use seasonal produce and offer special menu items at certain points of the year.
- food which is not included on the menu or otherwise offered for sale and which is expressly requested by the consumer to be made available or prepared differently to the way it is usually prepared. Where a customer requests extra cheese on a burger and that extra cheese was not a menu option or where a customer requests a different type of milk in their coffee which deviates from that which is advertised for sale by the business.
- alcoholic drinks over 1.2% ABV (alcohol by volume)
- condiments which are provided to be added by the consumer to their food (this exemption does not include condiments which are part of the food served)
Displaying calorie information
Businesses selling food in scope of the Regulations must display the energy content of the food in kilocalories (kcal), reference the size of the portion to which the calorie information relates, and display the statement that ‘adults need around 2000 kcal a day.
Calorie information, the reference to portion size, and the statement of daily calorie needs must be displayed clearly and prominently at the ‘point of choice’ for the customer; this is considered as any place where customers choose what food to buy. For businesses where consumers may choose their food in several locations, such as a menu on the premises, a display case on the premises, and an online menu, businesses are required to provide calorie information at each.
While not subject to this regulatory requirement, the government encourages smaller food businesses to also voluntarily adopt calorie labelling, as set out in this guidance document. The government will review the implementation of the Regulations for large businesses within 5 years of the Regulations coming into force and will consider extending the requirement to smaller businesses in the future.
For further information, go to www.gov.uk to ensure you’re following these new guidelines.
