Under the Calorie Labelling (Out of Home Sector) (England) Regulations 2021, it is now a legal requirement for businesses with over 250 employees, including restaurants, hospitality businesses, cafes, takeaways, pubs, bakeries etc., to display calorie information for non-prepacked food and soft drinks at the point customers make their choices i.e., on menus, online menus, third party apps, food delivery platforms and food labels. Menus and labels also need to state the recommended number of calories an adult should consume per day.
The calorie information must be the energy content of a single portion of the food, or, if the item purchased has been prepared for consumption by more than one person, the whole item, in kilocalories (followed by “kcal”). This should be calculated in accordance with the conversion factors listed in Anne XIV of the Retained Regulation 1169/2011, to be an average value. Government guidance confirms that where qualifying businesses rely on a supplier to produce the food it sells, they must work together to ensure the qualifying businesses has the requisite information to accurately calculate the calorie count. Businesses are encouraged to implement processes to ensure the information is as accurate as possible, with a tolerance of plus / minus 20% considered an acceptable margin.
Exemptions to the legislation are:
- condiments provided to be added by a consumer to their food (not including condiments forming part of the food served to the consumer)
- food that is only on a menu for less than 30 consecutive days of the year and a total of 30 days in any calendar year (with the intention that dishes of the day and specials will not be caught by the requirements)
- alcoholic drinks over 1.2% ABV
- food provided for free to hospital patients / patients at other medical establishments or to residents or service users at care / social care providers
- food provided at schools
- food which is not included on a menu or otherwise offered by the business, which is made available or prepared at the request of a consumer
- fresh fruit or vegetables which have not been peeled, cut or similarly treated, and fish, meat or cheese which has not been added to other food or offered for sale as an ingredient in food consisting of more than one ingredient
- Unprocessed, single ingredient products
- Loaves of bread or baguettes
- Food provided by a charity in the course of its charitable activities for free / at a reduced price, or offered for sale by or on behalf of the charity at a fundraising event
- Food served by the armed forces to a member of the armed forces, otherwise than at a military canteen
- Food served on an international aircraft / train / ferry which is travelling to or from a country other than the UK
Businesses that do not comply can be served with improvement notices by the local authority. Failure to comply with notices mean businesses could be guilty of an offence and fined £2,500. Food authorities must then publish this information (except where it has been overturned on appeal), resulting in PR implications for businesses that are fined.
The legislation forms part of the Government's Tackling Obesity strategy and demonstrates an interventionist attitude to tackling obesity and improving eating habits in the UK. It was introduced to address the notion that consumers have little information about how many calories are in the food offered when eating out and is based on evidence that many adults are consuming 200 – 300 extra calories a day. It is intended to empower consumers with the information to make healthier choices.
There are, however, concerns in the industry that calories form only one part of the picture of what makes food healthy (or unhealthy, as the case may be). There are other factors at play, such as fibre and protein content. Calories affect different people in different ways – sports people, for example, need more calories than those with sedentary lifestyles.
There are also increased costs associated with the change. Calculating the kcals, implementing training to ensure the accurate amount of ingredients are used and reprinting menus (it is currently unclear whether stickering can be used to make minor amendments to existing menus) will particularly impact SMEs. Rather than applying only to businesses with multiple outlets, the rules also apply to large businesses that only have one property, such as boutique hotels, and there are concerns that the rules are unfairly disproportionate on such businesses. It remains to be seen how food authorities will approach enforcement.