On 14 July 2021, the House of Lords will consider the draft Calorie Labelling (Out of Home Sector) (England) Regulations 2021, which were laid before the House on 13 May 2021. Both Houses must approve the regulations before they can be signed into law.

At the same time, the House will debate the following regret motion:

Baroness Bull to move that this House regrets that the draft Calorie Labelling (Out of Home Sector) (England) Regulations 2021 will not have their intended effect of addressing concerning levels of obesity in the United Kingdom; further regrets that their introduction will have negative and damaging consequences to those living with, or at risk of developing, eating disorders; further regrets that they have not taken into account the views of experts and those with lived experience of eating disorders and do not take an integrated public health approach to obesity and eating disorders; and calls on Her Majesty’s Government to commit to timely reviews of the impact of these regulations not only on obesity, but on eating disorders, as such disorders have the highest mortality rate of all mental health illnesses in the United Kingdom.

What will the regulations do?

The draft Calorie Labelling (Out of Home Sector) (England) Regulations 2021 would require large businesses (defined as those with 250 or more employees) to display the calorie information of non-prepacked food and drink items prepared for immediate consumption. Calorie information must be displayed at the ‘point of choice’ for the customer, such as on menus, menu boards, online menus, and food labels. In addition to displaying the calorie information of each item, businesses will also be required to display the statement that “adults need around 2,000 kcal a day” where it can be seen by customers when making their food choices.

The Government believes that providing consumers access to clear and consistent calorie information will help them make healthier choices for themselves and their families when consuming food outside of the home. Ministers also hope that more transparency on the calorie content of meals may also encourage businesses to reformulate products and/or reduce portion sizes.

Are the measures needed?

In justifying the need for the regulations, the Government points to data on levels of obesity, particularly among children:

Nearly a quarter of children in England are overweight or obese when they start primary school aged five, and this rises to one third by the time they leave aged 11. Childhood obesity rates in the UK are among the highest in western Europe. Obese children are more likely to become obese adults; currently around two-thirds of adults are overweight or obese with over one in four living with obesity. Obesity in adulthood increases an individual’s risk of developing type 2 diabetes, heart disease, fatty liver disease and a number of cancers.

The Government also suggests the regular overconsumption of a relatively small number of calories can lead to individuals becoming overweight or obese, and that this can be exacerbated by eating out:

[I]t is likely that eating out frequently, including eating takeaway meals, contributes to this gradual overconsumption of calories. Research suggests that eating out accounts for 20–25% of adult energy intake, and that when someone dines out or eats a takeaway meal they consume, on average, 200 more calories per day than if they eat food prepared at home. Data also tells us that portions of food or drink that people eat out or eat as takeaway meals contain, on average, twice as many calories as equivalent retailer own-brand or manufacturer-branded products.

Ministers further highlight research showing that an overwhelming majority of people—some 96 percent—eat out at least once a week, and that eating out is also becoming more common. They also suggest that the consumption of fast food and takeaways is particularly prevalent among families. Evidence from 2016 showed that 68 percent of households with children under 16 had eaten takeaways in the last month, compared with only 49 percent of adult-only households.

Prepacked food is required to display nutritional information, including calorie information. In contrast, the out of home sector typically sells food that is not prepacked. The Government contends this makes it difficult for people to make informed, healthier decisions when purchasing food from such businesses. They also contend there is strong public support for such a move. According to a 2018 survey by Public Health England, nearly 80 percent of respondents said they think that menus should include the number of calories in food and drinks. In addition, a survey from Diabetes UK showed that around 60 percent of the public said they would be more likely to eat at an establishment that offered calorie labelling on its menus.

The Government also contends that previous efforts to encourage businesses to sign up voluntarily to display calorie information had proven insufficient:

The Department of Health and Social Care [DHSC] has previously tried a voluntary approach to encourage more businesses to calorie label through its public health responsibility deal launched in 2011. One of the pledges asked food businesses to provide calorie information for customers on menus and/or menu boards; in total, 45 businesses signed the pledge.

Subsequent studies have suggested that, among signatories of the pledge, some did not display calorie labels and many of those who did were not found to meet all the labelling recommendations. Additionally, one study suggested that businesses would sign up to pledges with which they are already compliant; only 4 percent of signatories providing calorie labelling were judged as motivated by the responsibility deal.

Taken together, this suggests that a voluntary approach is insufficient to drive action on the scale required to make a substantive change to our food environment to help people to lead healthier lives.

What premises/businesses will be included?

Except for certain exemptions, the requirement to display calorie information will extend to any business with 250 or more employees selling food in scope of the regulations. This will include franchise operations even when individual franchise outlets may fall below this number (provided that the wider franchisor has more than 250 employees). The regulations will also extent to food that is sold on a website or mobile application. This could apply where food is sold through third party delivery companies, for example.

However, in recognition of the possibility that some organisations may have small in-house catering operations compared to the overall size of their businesses, the regulations will exempt certain institutions except where their catering services are provided by another large business (with 250 or more employees). This includes educational institutions for those over 18 years old, military establishments, criminal justice accommodation, hospitals or other medical institutions, care homes or other institutions providing social care, and workplace canteens providing food for employees. Food served at schools and colleges for those under 18 will also be exempt from the proposals.

What food is in scope?

The regulations will cover food if it is offered for sale in a form which is suitable for immediate consumption, is not prepacked food (where there are existing nutritional labelling requirements) and is not otherwise specifically exempt. The regulations define food considered suitable for immediate consumption in cases where it is sold for consumption on the premises (such as a restaurant or café) or sold for consumption off the premises and does not require any preparation before it is consumed. Certain common grocery items that are sold for consumption off the premises but may not require any preparation before they are consumed (such as fresh fruit or vegetables, meats, cheeses) are exempt unless they are used as an ingredient in food, such as a takeaway sandwich. The regulations offer further exemptions, including for food which is ‘off menu’ and food served by a charitable organisation in the course of its charitable activities.

What if businesses do not comply?

The regulations are to be enforced by food authorities in their local areas. In instances of non-compliance, enforcement officers will be required to issue an improvement notice before any penalty can be imposed, affording businesses an opportunity to take steps to comply with the requirements. However, non-compliance with an improvement notice is an offence and in such cases enforcement officers may impose a fixed monetary penalty of £2,500.

The regulations will require that calorie information is displayed by April 2022. The measures will apply to England only, though the UK Government reports that the Scottish and Welsh governments are both considering whether to introduce similar measures.

What are the potential benefits?

According to an impact assessment on the proposals prepared in 2020, the Government believes the regulations could deliver a net benefit of over £5.5 billion. This would be principally as a result of changes in personal decision making and the resulting reduction in demand for healthcare services. The assessment stated:

Expected benefits are the health benefits that would accrue because of lower calorie consumption amongst overweight and obese children and adults directly due to labelling and reformulation—equivalent to £10.1bn over the 25-year assessment period. There would be NHS savings worth £0.9bn, and social care savings worth £1.0bn. Economic activity through increased labour force participation would be expected to result in benefits worth £176m.

Criticism of the proposals

As noted by the House of Lords Secondary Legislation Scrutiny Committee (SLSC), the Government’s proposed approach has been criticised by those within the hospitality industry and by those who suggest that the move will have a detrimental impact on those with eating disorders.

For example, Hospitality UK said that it supported the aims of the policy but not the timing given the impact of the coronavirus pandemic on businesses:

The last thing the sector needs after prolonged periods of closure and trading restrictions is unnecessary red tape. The majority of operators are in survival mode and their recovery will take many, many months, so creating additional burdens is hugely unhelpful. Hospitality businesses share the Government’s objectives in tackling obesity and improving public health, but at a time of huge economic uncertainty these new rules must strike a balance and be proportionate. Layering on new costs for businesses in a sector that has been hardest hit by the pandemic risks prolonging their recovery and business’ ability to invest and create jobs.

In its submission to the SLSC, the organisation Beat, which supports those with eating disorders, was also highly critical of the proposals. Beat said that it supported the Government’s intention to reduce obesity, but said it was crucial to do this “through an evidence-based approach that recognises the complexity of obesity and does not harm people with eating disorders or those at risk of developing an eating disorder”. Specifically, Beat suggested research showed that when making hypothetical food choices from a menu that includes a calorie count, individuals with anorexia and bulimia are more likely to order food with significantly fewer calories. In contrast, research showed that people with binge eating disorder are more likely to order food with significantly more calories. Consequently, mandating the display of calorie information could “exacerbate the disordered thoughts and behaviours of people with eating disorders, and the potential for harm”.

Instead, Beat called for an integrated public health approach to obesity and eating disorders, focused on nutritional rather than simply calorie intake. It argued this should be based on consultation with experts from the field of eating disorders, including people with lived experience.

In response, the Government said it had mandated that a calorie-free menu should be available on request, and that it had consulted experts in the area:

We have been careful to consider the views of a wide range of experts in response to our public consultation on introducing mandatory out of home calorie labelling, including representatives from eating disorder groups. Feedback from people living with eating disorders is that they may find viewing calorie information challenging, and therefore may find it beneficial for their recovery to request a menu without calorie information when eating out. It should be noted that the regulations only permit a menu without calorie information to be provided at the express request of the customer, a business may not offer a menu without calorie information to their customers. This means that the default menu provided by businesses subject to these regulations will be one displaying calorie information, which will support people in making healthier choices when eating out.

The SLSC’s own conclusion was that this was an issue with no ideal solution, but one on which the Government evidently believed its approach to be justified:

It appears that this is a situation where there is no ideal solution, but DHSC’s policy is one it believes will benefit most people. Although the evidence of success is equivocal (for example, Beat cites evidence that some of the dietary changes made by individuals in America in response to a similar campaign were small and short-lived), the obesity problem is so widespread that DHSC sees these regulations as part of a campaign to raise awareness of calorie intake not only for individuals but also the hospitality industry. The markedly higher mortality rate from coronavirus amongst people who are overweight has made this initiative a priority.

The committee subsequently drew the regulations to the ‘special attention’ of the House.

Consideration in the House of Commons

The draft regulations were debated in the House of Commons on 17 June 2021.

Introducing the measures, Parliamentary Under Secretary of State for Health and Social Care Jo Churchill said that they would form a key element of the Government’s healthy weight strategy:

Calorie labelling in the out of home sector forms a key part of the Government’s healthy weight strategy, which was published in July last year. That strategy will contribute to our achieving our ambition to halve childhood obesity by 2030 and to help adults get their weight to a healthier level. Carrying extra weight imposes huge costs on individuals, families, and the economy. It is a leading cause of serious diseases such as type 2 diabetes, cardiovascular disease, and several types of cancer. It is also highly detrimental to joints and musculoskeletal health, and it has a significant impact on an individual’s mental health. For all those reasons, it is really important that we help people to make informed choices.

She added, regarding an individual’s choice over what they eat:

I know that people do not want to be hectored—I do not want to be hectored—about what to eat and drink. They should be able to choose freely for themselves and their families, but healthy choices need to be easier and people need the right information to make them. Consumers are used to seeing nutritional information on prepacked products; they see it on supermarket shelves all the time. Increasingly, they want to know how many calories are in the food and drink that they buy for themselves and their families when eating out at a restaurant or getting a takeaway.

On the points about implementation, the minister said that the Government was working with the sector and local authorities to ensure the measures were implemented smoothly. She added that the Government had consulted broadly and had used the results to shape the policy, for example exempting temporary and ad hoc menu items to enable businesses to use leftover ingredients. On the potential impact on those with eating disorders, the minister said:

I understand that there is also concern from individuals living with eating disorders about seeing calorie information when eating out or getting a takeaway. Eating disorders are serious conditions; they can be life-threatening, and we are committed to ensuring that there is the correct access to the services people need and timely treatment when they need it. We have listened throughout the consultation process and have put in place what we feel are reasonable adjustments to mitigate any unintended consequences.

She also said the Government had exempted schools and other institutions from the regulations in response to concerns expressed about exposing children to calorie information. However, she said a balance had to be struck considering the continually rising numbers of overweight and obese children in the UK:

We must recognise the obesity challenge that we face as a nation. Two out of five children go into primary school living with obesity or overweight, and three out of five come out as such in year 6. Supporting people with the information they need about their food and drink purchases is important to achieve our ambition to halve childhood obesity by 2030, and to help us all. Achieving and maintaining a healthy weight is arguably one of the greatest long-term health challenges that the country faces.

Responding for the Labour Party, Alex Norris, Shadow Minister for Health and Social Care, agreed that excess weight had a profound impact on life outcomes. He also noted the Government’s obesity strategy which he said his party broadly supported. He further welcomed that the Government was now taking action in the form of these regulations, suggesting that to date the approach had been “consultation heavy” but light on concrete proposals.

Mr Norris also said he welcomed what he hoped would be the medium- and long-term impact of the measures:

I think that the real value from the measure in the medium and long terms will be derived from transparency about the calorie content of meals, and the impact that will have in the reformulation of products and portion sizes. It is embarrassing for a big firm that has corporate social responsibility statements, and presumably seeks to have good public relations, to have a 3,000 calorie meal on its menu. I think that the measure will have a significant downward impact on that too.

However, Mr Norris also raised a number of concerns. They included the requirement to display that adults require 2,000 calories a day which would be imposed by the regulations, despite the fact that, for example, the number of calories required is in fact dependent on energy consumption. He also called calories a “very crude measure” and asked the minister whether consideration had been given to providing more information such as sugar and salt content. Citing the evidence provided in the Government’s impact assessment on the potential monetary benefits of the policy, Mr Norris suggested that the evidence was even stronger on reformulation, namely reducing the presence of elements such as sugar, salt and fat in existing foodstuffs.

On the issue of the impact on those with eating disorders, Mr Norris said:

The minister touched on those living with eating disorders. We all want to have a population approach to making society healthier, but none of us wants unintended consequences to make life much worse for an, admittedly smaller, group of people on whose lives the issue has a profound impact. It is striking that just four of the 230 paragraphs in the impact assessment relate to this issue. I have heard multiple ministers say that they have listened to concerns about the impact that the measure will have, and the movement on schools is welcome, but I still do not think that enough has been done to mitigate the impact.

The minister mentioned the option for a venue to offer a calorie-less menu option on demand. Why is that not being mandated? It would be relatively easy to do, and would mean that those for whom calorie counting is terribly triggering would have an alternative, albeit an imperfect one. There is still time between the decision that we make today and the implementation next April for the Government to continue to engage with those who have legitimate concerns about the draft regulations, to seek to address some of those points. Will the minister make that commitment?

Mr Norris also noted the impact of the coronavirus pandemic on those with eating disorders and called for further investment and a national strategy to help those struggling with these conditions.

Jo Churchill welcomed Labour’s support for the regulations and agreed on the benefits of reformulation, welcoming moves by those such as Kellogg’s to reduce sugar, salt, and fat in its products. On the subject of those with eating disorders, Ms Churchill reiterated that the Government had been working with Beat and sought the opinions of those with eating disorders multiple times since the publication of its obesity strategy. She added:

From personal experience, I gently say that those who are battling this horrible disease are often aware of the calorie content of something they are intending to eat or avoid before they cross the threshold of any establishment or order any food. It is important not only to keep dialogue going and to maintain sensitivity in understanding the size of the obesity challenge, but to offer services, conversations, and sensitivity around those who are living with eating disorders.

The House of Commons formally approved the regulations on 22 June 2021.

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Cover image by Priscilla Du Preez on Unsplash.