3A statutory or a voluntary ban?
45.In this Chapter we set out how children are able to purchase energy drinks and consider the evidence relating to whether a voluntary ban on the sale of energy drinks to children should continue, or whether the Government should take action and introduce legislation to prevent the sale of energy drinks to children. When reaching our recommendations on this matter we bear in mind the effects of energy drinks that we outlined in Chapter 2.
Can children currently purchase energy drinks?
46.In March 2018, a number of major retailers introduced a voluntary ban on the sale of energy drinks to under 16s (see footnote for a list of the retailers involved in this voluntary action).85 There is currently no statutory restriction on the sale of energy drinks to children in the UK.86 A number of witnesses noted that this was the case despite the products containing a warning that they were “not recommended for children”.87 The Association of Convenience Stores, also provides the following information in its ‘Preventing underage sales’ advice, to its members:
you should be aware that all major UK manufacturers advise that these products are not suitable for children which they define as under 16 years old. You may decide to impose a restricted sale policy on your own initiative, or you may be asked to do so by the local school or parents group. You should listen to such requests constructively and accommodate them if you can.88
47.A number of witnesses also argued that the low cost of energy drinks made them more accessible to children. Dr Amelia Lake, a researcher at the Centre for Translational Research in Public Health, provided evidence of deals on energy drinks that she had come across in her research: “in our work we have gone into shops and seen that you can buy four cans for £1, or even 10 cans for £1”.89 NASUWT similarly explained that:
Energy drinks vary in price, but Red Bull costs on average about £3.50 for four 250ml cans. So at 75p per can this is affordable for both children and adolescents. Additionally, supermarket own brands and other brands are also much cheaper.90
The Minister explained that the offers on energy drinks meant that “When there are four-for-£1 offers, children club together and buy those cans so they can share them out”.91
Statutory versus voluntary ban
48.In its Consultation on proposal to end the sale of energy drinks to children, the Government asked: “Should businesses be prohibited from selling high-caffeine energy drinks to children?”.92 The Government explained that they were looking at this because it recognised “the efforts of retailers who have already acted, [but there were] still many retailers who continue to sell these drinks to children”, and that:
Legislating to end the sale of high-caffeine energy drinks to children would create a level playing field for businesses and create consistency, helping ensure that children do not have access to energy drinks in any shop.93
49.Many witnesses provided us with their views on whether there should be a statutory or voluntary ban. A number of witnesses, including the Royal College of Paediatrics and Child Health and Dr Amelia Lake were in favour of a statutory ban as they thought it was “inevitable that children and young people will be able to purchase [energy drinks] with ease from alternative providers”.94 James Bielby, Chief Executive of the Federation of Wholesale Distributors, explained how voluntary action put some independent stores at a competitive disadvantage and therefore supported a statutory ban.95
50.NASUWT expressed support in the long-term for a statutory ban but noted that other action could be taken in the short-term:
the Government could look to reinforce such action by introducing an exclusion zone around schools within which retailers would be prohibited from selling energy drinks to children under the age of 16.96
51.The British Soft Drinks Association was not in favour of a statutory ban and called for “more targeted intervention that looks at how you stop children being able to buy drinks that are unsuitable for them can work”.97 James Lowman, Chief Executive, Association of Convenience Stores, however, viewed an exclusion zone by a school as a “very blunt instrument”.98
52.James Lowman stressed the importance of the Government’s plans needing “to follow evidence” but stated that they would work with the Government to implement its preferred policy.99 Dr Ashley Roberts, a toxicologist and adviser to Monster Energy, argued against a ban as “at this moment in time, it seems that there is no reason for banning, reducing or restricting energy drinks or caffeinated products for children”.100 Monster Energy and Energy Drinks Europe also questioned whether there was an evidence base to treat energy drinks differently to other soft drinks.101
53.We also directly approached retailers who had implemented a voluntary ban to ask what their views were on whether the voluntary ban should continue, or whether a statutory ban should be introduced. Interestingly there were a range of views. Some did not feel that it was appropriate to comment on Government policy.102 Others did not express a strong view and indicated that they would implement the Government’s preferred policy approach.103 Three retailers were supportive of a statutory ban—Tesco believed that it “would create a level playing field across the industry” and Asda added that a ban would need to be “accompanied by clear labelling”.104 One retailer, Aldi, supported the status quo of retaining a voluntary ban:
We believe the voluntary approach is the quickest and most effective way of implementing change, rather than resorting to legislation. We hope other retailers join the growing consensus that the sale of high-caffeinated drinks should be controlled.105
A ban at 16 or 18?
54.Whether a voluntary ban should continue or whether the Government should legislate for a ban on the sale of energy drinks to children there needs to be an age at which such measures would apply. The current voluntary ban uses 16 as its thresholds. The Government consultation asked whether any ban should be at 16, 18 or another age.106
55.We also discussed with our witnesses whether any ban, voluntary or statutory, should be for under 16s or under 18s. Of those who expressed a view on this matter the majority seemed to support a ban at 16:
- NASUWT teaching union and the British Dietetic Association argued that it “would be a good starting point”, with NASUWT explaining that 16 was “an obvious age [to start such a ban], because it is the compulsory school age in England”;107
- Professor Russell Viner representing the Royal College of Paediatrics and Child Health argued that 16 was the “age of legal majority”. He explained that “for almost all health aspects—consent, confidentiality and so on—the courts have essentially produced 16 as the age at which we are able to make adult decisions about our lives”;108 and
- The Jamie Oliver Food Foundation explained that 16 could be “evidence-based”.109
56.Some, including NASUWT and the British Dietetic Association, were in favour of a ban at 18 being considered in the longer-term depending on how successful a ban at 16 was.110 We also heard that 18 was the age used for bans in other countries including Latvia (since 2016), Lithuania (since 2014) and Turkey (since 2018).111 DHSC also explained that “In Sweden, some types of energy drinks are restricted to sale in pharmacies and are not for sale to under-15s, so there is a partial restriction”.112 How effective these bans have been was not discussed in our inquiry, but Dr Amelia Lake argued that the approach of these countries had “ensure[d] that a clear message is sent out that these drinks are harmful to children and young people”.113
57.Retailers currently implementing the voluntary ban on the sale of energy drinks to under 16s also shared their views. Again, just as with views on whether the ban should be statutory or voluntary, the retailers had diverging opinions. Some retailers did not express a strong view, or a view at all, on the age that any such ban should apply.114 Boots explained that they “would support a legal ban at 18, if that is the conclusion of the government’s ongoing consultation”.115 Two retailers, Tesco and Asda, were in favour of keeping the ban at 16. Asda explained that they had introduced the voluntary ban for under 16s as “the experts were asking us to implement an under-16 ban, presumably based on the evidence that they have”.116 Tesco was in favour of retaining the ban to under 16s for logistical and training reasons:
we would encourage the Government to keep the age restriction set at under 16 year olds, so that responsible retailers enforcing the ban on a voluntary basis are not penalised through needing to re-communicate to and retrain colleagues.117
58.The issue of identification for customers was drawn to our attention in submissions from retailers. The Co-Op and Asda suggested in evidence that schemes were readily available to check the age of customers regardless of whether a ban applied to under 16s or under 18s.118
59.We acknowledge that energy drinks are consumed disproportionately by disadvantaged groups and there is evidence that consumption of energy drinks is associated with negative impacts on “executive functions” and may risk hyperactivity or lack of concentration. Any trend that undermines the educational attainment of disadvantaged groups needs to be tackled. Meanwhile, the pricing of some energy drinks means that it is easy for children to consume them in excess, beyond the suggested safe limits—and there is evidence that children are doing this. The current voluntary ban implemented by a number of retailers amplifies the message that energy drinks are associated with negative health, behavioural and dietary effects. We would support schools, local authorities and local communities working with businesses and vending machine providers on possible actions (e.g. exclusion zones) that could be used to reduce energy drink consumption among children, and in particular to reduce the extent to which they are consumed in excess.
60.On balance, the current scientific evidence alone is not sufficient to justify a measure as prohibitive as a statutory ban on the sale of energy drinks to children. Single portions are within the European Food Safety Authority’s suggested limit for caffeine intake by children. This limit may be exceeded if other products containing caffeine are also consumed, or if energy drinks are consumed in excess, but the same can be said for many products available for sale to young people, including other drinks containing caffeine. However, we recognise that it might be legitimate for the Government to go beyond the quantitative evidence available and implement a statutory ban on the basis of societal concerns and qualitative evidence, such as the experience of school teachers. If the Government decides to introduce a statutory ban it should set out the reasoning for its decision.
85 Earlier this year Aldi, Asda, Boots, Lidl, Morrisons, Sainsbury’s, Tesco, the Co-Op Group and Waitrose introduced voluntary bans on the sale of energy drinks to under 16s
87 See for example, Federation of Wholesale Distributors (END0005) and Jamie Oliver Food Foundation (END0014).
88 Association of Convenience Stores, “Advice: Preventing Underage Sales”, March 2018
92 Department of Health and Social Care, Consultation on proposal to end the sale of energy drinks to children, August 2018
93 Department of Health and Social Care, Consultation on proposal to end the sale of energy drinks to children, August 2018
94 Royal College of Paediatrics and Child Health (END0010) and Q31. See also British Retail Consortium (END0006), Miss Anisa Ashraf (END0004), Jamie Oliver Food Foundation (END0014) and Q34.
106 Department of Health and Social Care, Consultation on proposal to end the sale of energy drinks to children, August 2018
111 See, for example: British Dietetic Association (END0012), Jamie Oliver Food Foundation (END0014) and Q253.
Published: 4 December 2018