As of 6 April 2022, qualifying businesses will have to display calorie information on their menus and labels due to the implementation of The Calorie Labelling (Out Of Home Sector) (England) Regulations 2021 (the “Regulation”).
The aim is to help consumers 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.
Who does it apply to?
Businesses with 250+ employees offering food for sale will fall within the remit of the Regulation. Employees is anyone who works full-time or part-time under a contract of employment. This is defined widely as a contract of service, whether express or implied, and, if it is express, whether oral or in writing.
In a franchise context franchisees’ businesses are considered to be part of the business of the franchisor when determining how many employees a business has. This means that where a franchisor may itself have less than 250 employees but would have more than this number when considered together with all of its franchised businesses then the franchisor and all franchisees will need to comply with the Regulation. However this does not mean that a Franchisor is subsequently liable for a franchisee’s failure to comply (just for its own acts or omissions). There is an exemption to this inclusive approach which is where the franchising arrangements do not dictate a common food offer across the franchise network, or only covers the provision of alcoholic drinks. In this case a franchisee’s business is not considered part of the franchisor’s for the purpose of determining whether it is a qualifying business.
However, it is worth noting that businesses who do not fall within the remit are still encouraged to volunteer this information and it may be the case that in future the mandatory provisions of the Regulation will be extended to smaller businesses.
What does it apply to?
Food, which:
- Is offered for sale in a form suitable for immediate consumption;
- Is not prepacked; and
- Is not exempt
The Regulation sets out in more detail what is meant by “immediate consumption”, which essentially captures food for consumption on the premises or takeaways that is ready to eat and does not require any preparation (peeling, washing, cooking, thawing, heating or reheating) by the consumer before consumption.
There are also various exemptions, such as fresh fruit and vegetables, cheese, bread, meat or fish for consumption off the premises (provided they do not form part of a meal) condiments, “special requests” made by customers where it would not be viable or practicable to provide calorie information and alcoholic drinks over 1.2% ABV.
What do you need to do to comply?
Display calorie information at the point where the consumer chooses their food. This includes both in-person purchases for example at a counter, as well as online purchases where the food is offered for sale on a website or through a mobile application.
The information to be displayed is:
- The energy content of a single portion (or, if the item purchased is prepared for consumption by more than one person, of the whole item) of the food in kilocalories followed by the letters "kcal";
- The size of the portion to which the calorie information relates; and
- A statement that reads “adults need around 2000 kcal a day”.
Where food is chosen from a menu, the information must be next to the description or the price of the food concerned. Where food is chosen from a display, the information should be on a label identifying the food concerned, next to, or in close proximity to the item.
Franchisors and businesses with multiple sites in the out of home sector will need to consider how to ensure compliance throughout their business to avoid enforcement actions, such as improvement notices and fixed fines of £2,500. Enforcement is delegated to local Food Authorities.
If you have any questions in relation to the above, or would like us to assist you implementing the requirements within your business, please do not hesitate to get in touch.
Nicola Broadhurst
Jessica Gregson