Banner triangles

What’s on the Menu? OOH calorie labelling to be required

Following the government’s consultation on calorie labelling for food and drink served outside of the home in 2018, qualifying businesses in the out of home (OOH) sector will be required to display calorie information per portion from 6 April 2022.

What is changing?

Currently, businesses serving non-prepacked food and drink in the OOH sector are not required to provide calorie (energy) information. This makes it difficult for consumers to make informed, healthier decisions when purchasing food from such businesses. The Calorie Labelling (Out Of Home Sector) (England) Regulations 2021 (the ‘Regulation’) introduce an obligation on qualifying businesses to display calorie information, together with an information statement in a visible and legible format on menus and food labels.

What is a qualifying business?

A ‘qualifying business’ is any business with 250 or more employees offering non-prepacked food or drink for sale that is suitable for immediate consumption.

Examples of a qualifying business include restaurants, cafes, takeaways, bakeries and caterers. Supermarkets and entertainment venues (e.g. cinemas or hotels) where food is served in scope of the policy will also be caught.

It is anticipated that smaller businesses in the OOH food sector will be required to comply with calorie labelling in the near future but are encouraged to volunteer this information in the meantime.

What food is within scope?

Nearly all food and drink products that are prepared and sold for immediate consumption and not already subject to prepacked labelling requirements will be affected.

Food is considered suitable for immediate consumption if it is either:

  • Non prepacked (such as a meal at a restaurant);
  • prepacked for direct sale (products made and packed on site); or,
  • packaged at the consumer’s request (such as an item from a hot food tray at a café or bakery).

Are there any exemptions?

There are exempt foods, including:

  • Food included on a menu for less than either 30 consecutive days, or a total of 30 days in any calendar year;
  • Food not included on a business’ menu and is made at the express request of a consumer;
  • Fresh fruits, vegetables, cheese, bread, meat or fish for consumption off the premises provided they do not form part of a meal;
  • Condiments provided that are to be added by a consumer to their food and do not form part of the food served; and, 
  • Alcoholic drinks over 1.2% ABV (alcohol by volume).

There are also some businesses that will be exempt from the Regulation when serving food for particular audiences, including but not limited to:

  • Charities providing food (or food offered for sale on behalf of a charity) for free or less than the cost of providing the food at a single event to raise funds for its charitable activities;
  • Health and social care settings where the food is provided solely for its patients or residents; and,
  • In-house workplace canteens.

What needs to be displayed?

Calorie information will need to be displayed at the consumer ‘point of choice’ e.g. physical and online menus, food delivery platforms and food labels.

The information to be displayed is:

  • The energy content of a single portion of the food (or, if the item purchased is prepared for consumption by more than one person, of the whole item) 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 products are chosen from a menu, the information should be displayed on the menu next to the description or price of the food. Where products are chosen from a display, the information should be on a label identifying the food next to or in close proximity to the item.

The requirement extends to online sales. Consequently, third party delivery apps (irrespective of the size of their business) will be required to display calorie information on items sold by businesses in scope of the Regulation.

What happens if you don’t comply?

Local authorities will be responsible for enforcing the Regulation and will have the power to serve improvement notices on non-compliant qualifying businesses. Failure to comply can result in a fixed monetary penalty of £2,500. Non-compliance will also likely result in reputational damage for the business.

What do businesses need to do now?

Businesses should assess whether they will be caught by the Regulation and if so, should start planning for the upcoming changes now. Businesses will be required to calculate the calorie content per portion of food or drink item sold, update their menus, websites and labels etc. and ensure that this information is accurate and kept up to date.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2022.

Insights

Read the latest articles and commentary from Shoosmiths or you can explore our full insights library.