4th Report Contents

Instruments drawn to the special attention of the House

Draft Calorie Labelling (Out of Home Sector) (England) Regulations 2021

Date laid: 13 May 2021

Parliamentary procedure: affirmative

These Regulations require cafés, restaurants and takeaway food businesses with more than 250 employees (including franchises and food delivery firms) to provide information on the food and drink that they sell for immediate consumption in kilocalories (kcal). By 6 April 2022, calorie information must be displayed at the point of choice for the customer, on menus and online sites, alongside a statement that ‘adults need around 2000 kcal a day’. The Department for Health and Social Care (DHSC) presents a well-argued case for the policy but it is not unchallenged; both the hospitality industry and Beat (an organisation representing people with eating disorders) have expressed concerns. 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. The markedly higher mortality rate from coronavirus amongst people who are overweight has made this initiative a priority.

These Regulations are drawn to the special attention of the House on the grounds that they give rise to issues of public policy likely to be of interest to the House.

Background

3.These Regulations, laid by the Department for Health and Social Care (DHSC), require qualifying businesses which sell food and drink for immediate consumption, either in a café, restaurant or other catering establishment or as take away food, to provide information on the energy content of the food that they sell to consumers in kilocalories (kcal). By 6 April 2022, calorie information must be displayed at the point of choice for the customer, on menus and online sites, alongside a statement that ‘adults need around 2000 kcal a day’. The provision applies to all businesses with 250 or more employees, including franchises, and where food is sold through third party delivery companies. (Separate legislation already requires pre-packed foods sold in supermarkets and other shops to show the food’s calorie content on the label.)

4.In the Explanatory Memorandum (EM), DHSC says that voluntary measures to encourage these food businesses to provide calorie content have been in place since 2011 but that compliance has been very low. The Department cites evidence that one in four children and adults are now obese and that restaurant or take-away meals contribute to the overconsumption of calories because they contain, on average, twice as many calories as equivalent retailer own-brand or manufacturer-branded products.

5.DHSC hopes that clear and consistent calorie information at the point of choice will help consumers make healthier choices, and that transparency about the calorie content may encourage businesses to reformulate products or reduce portion sizes. If successful, as well as health benefits for the individual, the legislation is anticipated to save the NHS and social care services nearly a billion pounds in care costs over 25 years. We commend the comprehensive, well-structured and clear EM which supports the proposed policy change with a range of evidence.

Concerns expressed

6.DHSC’s policy is well presented and argued but not unchallenged. Concerns have been expressed by UK Hospitality, which supports the objective but not the timing:

“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.”3

7.The legislation allows firms, however, until 6 April 2022 to comply, exempts smaller firms, schools, hospitals and other institutions that run their own canteens, and provides an exemption for restaurants where the menu changes frequently. It is squarely targeted at the larger chains.

8.Different concerns have been expressed by Beat,4 an organisation that supports those who suffer from eating disorders, that the publication of calorie content will exacerbate their condition because it will encourage an obsession with calories, which is a common trait for people with eating disorders. Beat also says that the Government’s focus should be on nutrition rather than simply on calorie intake. DHSC states that they have taken into account similar views expressed during the consultation by providing an exemption in the Regulations which allows for a menu without calorie information to be provided on request. In additional material on this point, DHSC said:

“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.”

DHSC’s response

9.The matter is also addressed in DHSC’s published response to the consultation.5 In this, while acknowledging the legitimate concerns of those with eating disorders, the Department also cites research which shows that the general public would welcome these changes:

“There is strong public demand for calorie labelling; 79% of respondents to a Public Health England survey said they think that menus should include the number of calories in food and drinks. Another survey from Diabetes UK showed that around 60% of the public said that they would be more likely to eat at an establishment that offered calorie labelling on its menus.” (page 5)

10.DHSC maintains that the policy is justified by the increasing amount of obesity in the population, “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” with the negative effects this will have on them in adulthood (increased risk of developing type 2 diabetes, heart disease, fatty liver disease and a number of cancers).

11.DHSC has provided additional data which illustrates the range of groups and reasons for concern:

“Data from the Health Survey for England, published December 2020, shows that, in 2019, around 64% of adults (28.9 million) aged 16 and over were overweight or obese; around 28% of adults (12.6 million) were living with obesity. The same survey reported 16% of adults aged 16 and over screened positive for a possible eating disorder. The eating disorder charity Beat estimate that approximately 1.25 million people in the UK have an eating disorder.

The Health Survey for England shows that, in 2019, 10% of adults had diabetes, of which 7% was doctor-diagnosed diabetes. The proportion of all adults with doctor-diagnosed diabetes has at least trebled from 1994. A Diabetes UK report published in February 2020 suggested that 3.9 million people in the UK are currently living with a diagnosis of diabetes, up to 4.8 million people when data on estimated undiagnosed cases is included. Diabetes UK estimate 90% of people with diabetes in the UK have type 2 diabetes. As well as the human cost, type 2 diabetes treatment alone accounts for just under 9% of the annual NHS budget; this is around £8.8 billion a year.

Excess weight is also the second biggest preventable cause of cancer behind smoking and is linked with several different types of cancer; Cancer Research UK estimate around 22,800 (6.3%) of cancer cases in the UK per year are attributed to being overweight or obese. Excess abdominal adiposity and type 2 diabetes are risk factors for cardiovascular disease; in 2017, the Health Survey for England reported that 14% of adults aged 16 and over had a doctor-diagnosed cardiovascular disease. In 2016, cardiovascular disease was the second most common broad cause of death, accounting for just over a quarter of all deaths registered in England and Wales.”

12.The Government’s consultation response cites the current pandemic as the reason for pressing for this change at this time:

“The outbreak of COVID-19 has been one of the biggest public health challenges ever faced by the UK and is a catalyst for us to redouble our efforts to reduce obesity levels in the UK. Emerging evidence shows that patients with obesity, and in particular morbid obesity, may be more likely to be admitted to intensive care; require advanced treatment, such as ventilation; and have 37% increased risk of dying from COVID-19 compared to non-obese patients.” (page 4)

Conclusion

13.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.


1 An “ambulatory reference” allows domestic legislation to be updated automatically when the cross-referenced provisions in international legislation are updated.

2 Our 21st Report of Session 2017–19 (HL Paper 88) included an exchange of correspondence on this point and more recently, our 17th Report of Session 2019–21 (HL Paper 73).

3 UK Hospitality, Press Release: Commenting on Government plans revealed in the Queen’s Speech that may impose restrictions on advert on 11 May 2020: https://www.ukhospitality.org.uk/news/565003/Commenting-on-Government-plans-revealed-in-the-Queens-Speech-that-may-impose-restrictions-on-advert.htm [accessed 9 June 2021].

5 DHSC, Mandating calorie labelling in the out-of-home sector: Government response to public consultation (26 February 2021): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/903714/Calorie_Labelling_-_Consultation_Response.pdf [accessed 4 June 2021].




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