Ending the sale of energy drinks to children and young people: consultation analysis

3. Proposals for implementation, enforcement and evaluation

Exemptions to the policy

3.1. The consultation paper notes that consideration is being given to implementing mandatory age restrictions for the sales of energy drinks in places including retail, out of home settings and wholesales outlets where energy drinks are sold to the public. It also states that exemptions might be applied to locations that are not widely open to, or attended by, young people including, for example, wholesale outlets where sales are only to trade. Other potential exemptions could be cafeterias and vending machines that are located in workplaces.

Question 2: If implemented, are there any places where energy drinks are currently sold, that should be exempt from mandatory age restrictions?

Please explain your answer and provide any thoughts on how this could work in practice. In particular, views are sought for energy drinks sales in vending machines and those made online.

3.2. A total of 96 respondents (33 organisations and 63 individuals) answered Question 2.

3.3. The most common position, which was held by a majority of education or young people focused organisations, health focused charity or campaign organisations, health professional union or royal college respondents and individuals, was that there should be no exemptions. This view was also particularly common among respondents who advocated a mandatory age limit of 18.

3.4. It was argued that:

• For a ban to be effective it must be comprehensive.
• Clarity is important and exemptions may cause confusion or create loopholes and opportunities for exploitation.
• Restrictions should be applied to all retailers, creating a level playing field and any exemptions must be communicated clearly. It was suggested this would guard against certain firms being given an unfair commercial advantage.

3.5. Parallels were also drawn with the rules in place to prevent the sales to young people of other age-restricted products such as cigarettes and alcohol. For retailers it was noted that the Challenge 25 system already in place could be used for energy drinks. Issues associated with online sales are discussed below.

Vending machines

3.6. Reflecting the wording of the consultation paper, the majority of comments at Question 2 referred to vending machines, with the most frequent position being that energy drinks should be banned from vending machines. Education or young people focused organisations, health focused charity or campaign organisations, health professional unions or royal colleges, NHS, HSCP or local authorities, 'other' organisations and individuals were amongst those taking this view.

Reasons for restricting energy drink sales from vending machines

3.7. Vending machines were thought to be difficult to monitor or regulate and created potential loopholes for children to access energy drinks. An approach that limits the sales of energy drinks from vending machines to areas where there are few children was opposed and it was argued that a ban would be the most effective way to prevent sales in places where there is no age verification on entry. It was noted that alcohol and cigarettes are not sold via vending machines.

3.8. Some respondents who opposed the sales of energy drinks through vending machines acknowledged that such a ban would also limit adult access to energy drinks. However, it was argued that this would be generally beneficial in view of potential harm caused by high doses of caffeine and that restricting access would be a reasonable trade-off for full implementation of restrictions on access for young people.

3.9. It was also argued that any permitted sales of energy drinks from vending machines should be only in venues where there are age restrictions for entry, or where restrictions are enforced by the business or organisation on whose property the machine is located. Exemptions for vending machines in workplaces, and specifically workplaces that are not accessed by young people or that are not open to the public, were also supported. Where specified, the age restriction suggested for such venues or workplaces tended to reflect the respondent's view of an appropriate age restriction at Question 1. – For example, those who thought the mandatory age limit should be 18 suggested vending machines should be excluded from places accessed by under 18s.

Reasons restrictions are unnecessary

3.10. A small number of manufacturers or manufacturer representative bodies and retailers or retailer representative bodies argued that restrictions on vending machines are unnecessary. Their further comments included noting the existing voluntary measures set out in the Union of European Beverage Associations code of practice for the marketing and labelling of energy drinks, quoting a commitment not to 'engage in any direct commercial activity in relation to energy drinks in either primary or secondary schools, including the placing of vending machines'.

3.11. A retailer and a retailer representative body suggested that, in Scotland, all members of the Automatic Vending Association (AVA) strive to achieve the Healthy Living Award and do not sell energy drinks of any description in public facing leisure, healthcare or travel sites where someone under 16 can access the machine unsupervised.^[11] The retailer representative body noted that machines run by their members were reported to be mainly in business and industry locations where there is generally no access by under 16s, with around 1 in 5 in education (mainly higher or further education settings) or leisure.

3.12. A manufacturer argued that work is needed to understand how to prevent access by young people while not limiting choice for older customers, with a suggestion that the AVA would be best placed to advise.

3.13. Another manufacturer and a manufacturer representative body argued that, given the size of the UK market for cold drinks sold from vending machines – estimated at £239 million – the financial impact of the potential ban has been overlooked. Citing industry data indicating that under 16s account for around 6% of occasions when energy drinks are consumed, it was argued the remaining 94% of customers would be unable to purchase energy drinks from vending machines if such sales were to be banned. Lorry drivers using vending machines to purchase energy drinks during a night shift when shops are closed were given as an example of a group who would be affected by an outright ban.

3.14. A manufacturer suggested that banning sales from all vending machines would be disproportionate, and potentially contrary to EU law.^[12]

Online sales

3.15. Although it was acknowledged that online sales will be difficult to manage, a small number of primarily individual respondents suggested that proof of age could be required as for the online sales of alcohol or tobacco. A requirement for age verification on delivery or at in‑store collection was proposed.

Proposed exemptions from mandatory age restrictions

3.16. Respondents also commented on specific locations or circumstances where they thought exemptions would be appropriate including:

• Sales via wholesale or cash and carry outlets
• Sales in licenced premises or cafes
• Over the counter purchases in sport centres
• Pharmacies
• Vending machines in general
• Online shopping in general
• Online sales on trade-to-trade basis.

Enforcement of the policy

3.17. The consultation paper outlines proposals for enforcement of the policy, also noting that discussions will continue with respect to alignment with approaches taken in other parts of the UK.

3.18. It is proposed that local authorities would be responsible for enforcing any requirements that are implemented, and that the Scottish Government would work closely with the Convention of Scottish Local Authorities, Food Standards Scotland and representatives of trading standards and environmental health officers to assess resource implications. Scottish Government would aim to minimise demands on existing enforcing authorities as well as those subject to the restrictions. There would also be work with local authorities and retailers to develop both Ministerial guidance to local authorities and an implementation guide for retailers.

3.19. It is proposed that sales to those under the age restriction would be an offence for sellers. However, it would not be an offence for those under the age restriction to purchase energy drinks. Nor would it be an offence for someone to purchase energy drinks for a person under the age restriction.

Question 3: Please comment on our proposals for enforcing any requirements that are implemented. Please include any practical issues that we should consider to ensure that the enforcement of any policy implementation is done fairly and is not overly burdensome.

3.20. A total of 70 respondents (32 organisations and 38 individuals) answered Question 3.

3.21. A small number of individuals, health focused charity or campaign organisations and NHS, HSCP or local authority respondents indicated broad support for the proposals for enforcement outlined in the consultation paper. There were calls for engagement with local authorities, trading standards and other relevant representative bodies to ensure that the proposals for enforcement and implementation are pragmatic, reasonable and well-resourced. However, a manufacturer representative body raised concerns about the lack of policy detail on enforcement contained in the consultation document. A retailer representative body also sought clarification of plans for enforcement.

3.22. Across all those commenting, the most frequently made point was that enforcement requirements for energy drinks should follow those for alcohol. Individual and health professional union or royal college respondents were most likely to take this view. Using existing standards and mechanisms for dealing with the sales of these products was recommended and argued not to be excessively burdensome. It suggested that, in terms of age verification, setting an age limit at 16 could be more burdensome in the absence of established mechanisms and the lack of a national ID scheme. The Challenge 25 policy was advocated.

3.23. A risk of unintended consequences was also highlighted. Rather than risk prosecution if vending machines were accessed by those under the age restriction, it was argued vending machine operators would remove energy drinks from their machines in workplace sites.

Enforcement authority and activity

3.24. Comments on the enforcement authority included support for enforcement by local authorities and trading standards. It was noted that Trading Standards staff have a broad range of experience around enforcing age-restricted sales. Enforcement and monitoring by Licensing Standards Officers was suggested as a possible approach.

3.25. A small number of NHS, HSCP or local authority respondents were among those who observed that there would be resource implications for local authorities. While a retailer representative body suggested that the absence of resources may mean restrictions are not enforced consistently, such that the level playing field the legislation is intending to create will not be realised. A manufacturer representative body argued that Trading Standards have more important issues, with far greater public health impact, to enforce.

3.26. Light touch enforcement activity, led by intelligence and based on a supportive approach, was proposed by a retailer representative body. An NHS, HSCP or local authority respondent suggested that, as for alcohol or tobacco, young people could be sent into shops to attempt to purchase energy drinks in order to provide evidence of illegal sales.

3.27. As at earlier questions there were arguments in favour of the policy on enforcement being aligned with approaches taken elsewhere in the UK. It was suggested that this would be valuable with respect to the complex area of carrying out age checks for online sales. However, an alternative perspective from an individual respondent was that alignment with the rest of the UK is not important, particularly given that Scotland already adopts different approaches across other policy areas.

3.28. An education focused organisation stressed the importance of enforcement being at the point of sale, and that schools should not be given any duties in respect of policing or enforcement.

Verifying age

3.29. A small number of retailer or retailer representative body and individual respondents commented on verifying age. It was observed that 16 and 17-year olds may not carry identification. The use of the Young Scot National Entitlement Card as proof of age was suggested but it was noted that it is only issued to around 70% of young people at present, so may not provide full coverage. Lack of ID was predicted to cause problems for young people – and the shop staff who have to serve them.

3.30. A small number of retailer representative body respondents commented on incidents of abuse towards staff associated with enforcement of age restrictions. One cited findings from their own retail crime report, showing incidents related to requests for identification or refusal of sale are the most common triggers for abuse against staff. Their report noted incidents of abuse and anti-social behaviour in relation to age verification and refusal of sale of energy drinks had already been recorded.

3.31. Another retailer representative body respondent raised concerns that the new policy increases the likelihood of potential conflict between retail staff and the public. They also argued that retailers will need to increase the time taken to verify the age of customers who look around the specified age limit. Adding energy drinks to the list of products with age restrictions was predicted to increase queuing time and potential frustration for all customers, as well as for those who are checked and potentially refused sale.

Offences

3.32. With respect to creation of criminal offences, one 'other' respondent suggested this should be a last resort, only used after other measures are demonstrated to be ineffective. Criminal convictions were noted to have implications for future employment and travel, and it was seen as important to consider whether this would be a proportionate response. The same respondent also argued that the Scottish Government should consider how many prosecutions might result, and the resulting resource implications for the Scottish criminal justice system.

3.33. A small number of respondents, including retailer representative bodies, a health focused campaign organisation, a health professional union and an 'other' respondent, suggested that it should be made an offence to purchase an energy drink for someone else under the age restriction, or that it would be appropriate for the Scottish Government to give consideration to doing so. A retailer representative body respondent noted experience of proxy purchasing reported by members who have implemented a voluntary ban on energy drinks. They argued making this an offence would provide consistency for retailers who enforce other age restrictions where proxy purchase is an offence.

3.34. If proxy purchasing is not made an offence, a health focused campaign organisation suggested that the mandatory age limit must be set at 18 to avoid undermining the effectiveness of the policy in schools. Otherwise 16 and 17-year old pupils who had been sold energy drinks legally could pass them to younger children without committing an offence.

3.35. A retailer representative body suggested that it should be an offence for someone under the age restriction to try to purchase an energy drink and that it is unfair to place all responsibility on sellers. They argued that this would provide a deterrent to those under the age limit, as well as providing a line of defence to the retailer should they fail to correctly identify a person's age.

Fixed penalty and compliance notices

3.36. A local authority respondent noted their support for the use of fixed penalty notices, which they suggested are an effective tool for dealing with breaches. An 'other' respondent observed that fines could be imposed as part of either civil or criminal sanctions. However, it was thought unlikely that a compliance notice would apply or be appropriate to the sales of energy drinks and that the offence would need to relate to the sales of energy drinks on a specific occasion to an age-restricted person.

3.37. Although fixed penalty notices could avoid prosecution costs it was noted that a due diligence defence would mean cases going to court, and that failure to pay or to comply with notices would require prosecution – again with resource implications.

3.38. It was also suggested that, in addition to fines, retailers might be banned from selling energy drinks, with a possibility of a longer ban for repeated offences.

3.39. Concerns were expressed that local authorities may have a financial incentive to issue fixed penalty notices rather than taking an education led approach, and reassurance was sought that Scottish Government guidance to local authorities would encourage the latter approach.

Importance of education and public awareness

3.40. A small number of education focused organisations, health focused campaign organisations, NHS, 'other' and individual respondents commented on the need for education about the new policy and the risks associated with energy drinks. Awareness raising that targets young people, schools, parents, retailers, and health professionals were all proposed. A social marketing campaign to encourage behaviour change was suggested.

3.41. The health and wellbeing element of the Curriculum for Excellence was suggested as an opportunity for Education Scotland to work with the Scottish Government and other stakeholders. Resources and support materials could be developed that schools can use to enhance the knowledge and understanding of pupils of the health implications of energy drink consumption.

3.42. Some respondents who disagreed with the principle of an age restriction being placed on the sales of energy drinks argued that education and raising awareness would be a better approach.

Developing guidance

3.43. An 'other' respondent supported the development of Ministerial guidance to be issued to local authorities and an implementation guide for retailers. This, combined with proactive education and awareness raising, was suggested to be a better approach than resorting to criminal enforcement.

3.44. Existing retail advice schemes were highlighted, and one retailer representative body offered to work in partnership with the Scottish Government to develop a retailer guide. A guide for wholesalers was also suggested, to distinguish different requirements for wholesalers selling to the public versus those selling to trade only, as well as for those selling to both.

3.45. One retailer representative body suggested that the Primary Authority^[13] scheme should be extended to smaller operators through their trade association, rather than being limited to large businesses. Another argued that making provisions subject to Primary Authority competence would allow for individual help and support and that businesses should be allowed to demonstrate the measures and systems they have in place to ensure compliance.

Definitions and labelling

3.46. The consultation paper explains that the Scottish Government intends to use the same definition of an energy drink as the UK Government namely any drink, other than tea or coffee, which contains over 150 milligrams of caffeine per litre.

3.47. There were calls for clear definition of those products subject to an age restriction in order to avoid:

• Technical loopholes
• Retailers breaking the law unintentionally. It was suggested that small independent retailers in particular may find it hard to keep up to date with changes in the law and to train their staff
• Confusion with other drinks, including sports drinks and other soft drinks that may be marketed as providing 'energy', but are below the threshold of 150 milligrams of caffeine per litre.

3.48. On the latter point, a small number of manufacturer or manufacturer representative body respondents said that implementation and enforcement must ensure that products out of scope are not inadvertently included in a ban by retailers. It was suggested that the terms 'high caffeine energy drinks' and 'energy drinks' are being used interchangeably by governments with the potential to cause confusion. It was suggested guidance to retailers should include both an indicative list of products covered by the legislation, and clear guidance on how to identify relevant products.

3.49. A requirement for manufacturers to label age-restricted products clearly was also suggested, with existing labelling strengthened and an age limit icon added to facilitate easy identification. There were calls for an implementation period of at least 12 months, to allow time for retailers to understand and comply with the policy and for on-pack labelling changes. Although it was also argued that any transition period should be determined by credible evidence and not allowed to undermine the need for urgent action.

3.50. An alternative perspective, from another manufacturer representative body was that, to ensure caffeine consumption by children is addressed, the definition should be broadened to capture all sources of caffeine and sugar consumed by children – including in coffee, tea, chocolate, and caffeinated soft drinks. Regulation of energy drinks alone due to their caffeine content was suggested to send a message that they are more highly caffeinated than other unregulated products.

3.51. The respondent taking this view said that, to comply with best practice principles for food regulatory policy, any specific definition for energy drinks that is to be set in law should be produced by the Food Standards Agency^[14] after a science-based risk assessment process.

Evaluating the policy

3.52. The consultation paper notes that, depending on the action taken, consideration will be given to how best to evaluate any policy implemented. It states that monitoring could include assessing: compliance with the policy by retailers; any impact on Scottish businesses; any changes in consumption levels by the age groups affected; and any related impacts on health and wellbeing.

Question 4: Please comment on our proposals for evaluating any policies that are implemented.

3.53. A total of 55 respondents (28 organisations and 27 individuals) answered Question 4.

3.54. There was often agreement that the proposals are broadly appropriate, with individuals, health focused charity or campaign organisations, health professional union or royal colleges, a manufacturer representative body, NHS, HSCP or local authority, retailer or retailer representative body and 'other' respondents amongst those taking this view.

3.55. However, caveats included that there should not be additional burden or extra cost for retailers or local authorities. It was also suggested that the policy should be assessed on a regular basis and that findings should be shared with stakeholders and reported to the Scottish Parliament.

3.56. A small number of respondents commented on what they saw to be the relative importance of the four criteria listed in the consultation paper. It was suggested that changes in consumption and wellbeing were most important, with impact on business less so.

3.57. Other comments on the proposed criteria included that:

• Test purchasing or mystery shoppers can be used to monitor compliance by retailers.
• Engagement with children and young people throughout the process, including evaluation of impact, will be important. This was noted to be in line with UNCRC Article 12 (respect for the views of the child) and it was argued that in order to understand impacts on the health and wellbeing of children and young people their views and opinions need to be sought, measured and followed over time.
• Evaluation of impact on health and wellbeing will need to focus on young people who were previously consuming energy drinks in large quantities and are prevented from doing so by the ban.
• School meal providers create employment opportunities in the same way as other businesses. Shops and takeaways near to schools were argued to have been operating on an unlevel playing field with school meal providers, with tight regulation in one setting and very little in the other.
• The Energy Drinks Business and Regulatory Impact Assessment questionnaire was suggested to provide a base point for evaluation of any restrictive legislative impact within the vending market.

3.58. Respondents also suggested additional aspects they thought should be evaluated, most frequently that unintended consequences – such as substitution with other highly caffeinated or high sugar products – should be monitored. Some respondents making this point argued that, should evidence indicate that children and young people are consuming growing amounts of other drinks that exceed 150 milligrams caffeine per litre, it may be appropriate to explore the case for extending the restrictions to such products.

3.59. Other suggestions included:

• Reviewing the extent to which any drinks not high in caffeine are inadvertently included in the ban by retailers.
• Assessing any post-implementation rise in incidents of abuse or anti‑social behaviour towards shop staff.
• Monitoring levels of non-compliance, enforcement activity reported, and levels of penalties imposed.
• Monitoring of counterfeit products.
• Monitoring impact on dental health which was suggested to provide an early marker of health impact since dental disease can develop over a shorter timescale than conditions such as obesity and type 2 diabetes.
• Assessing how consumption is affected by socioeconomic status and whether the policy has had a differential impact across different socioeconomic groups. A Health Inequalities Impact Assessment was also suggested, and it was argued that there should be strong equalities focus around implementation and evaluation. (This is discussed further at Question 8.)
• Exploring what drives consumption of energy drinks among young people, particularly those in groups with higher rates of consumption, to provide an understanding of specific causes and to gather robust data on other methods of support that may help reduce consumption of health-damaging products.

3.60. The need to monitor impact on schools and youth groups was also highlighted. With suggestions including lifestyle and attitude surveys for young people and qualitative research with teachers on any improved outcomes in areas where energy drinks had adverse effects.