Food (Promotion and Placement) (Scotland) Regulations 2025: implementation guidance

7. Enforcement

Enforcement authorities have a number of tools at their disposal including the power to issue compliance notices.

Enforcement of the regulations

Local authorities (as food authorities) are responsible for enforcing the regulations using powers in the regulations, the Food Safety Act 1990 and the Food (Scotland) Act 2015.

Businesses may work with their local authorities to ascertain whether their business falls in scope of the regulations. There are longstanding arrangements in Scotland to ensure consistent application of regulatory requirements including through the Scottish Food Enforcement Liaison Committee (SFELC). Local Authorities may wish to liaise with SFELC as appropriate to ensure consistent enforcement on complex areas of the policy.

Penalties for non-compliance

Non-compliance with the regulations will amount to an offence, which could result in a criminal penalty. The maximum criminal penalty is a fine not exceeding level 4 on the standard scale (£2,500).

Local authorities may issue compliance notices as an alternative to prosecution, giving enforcement officers more flexibility to deal with the offences. It is expected that fixed penalty notices will be available as an enforcement option at a later date.

Whilst compliance notices may be appropriate for many instances of non-compliance, there may be cases, for example where there are repeat offenders or large scale non-compliance, where prosecution may be more appropriate.

Enforcement officers can issue compliance notices under the Food (Scotland) Act 2015. Under the 2015 Act, compliance notices can be utilised in relation to "relevant offences". The offences in the Regulations are considered "relevant offences" for the purposes of issuing compliance notices.

Aligning with the enforcement regime for other offences in food law aims to provide for consistency and clarity for business and enforcement authorities.

Further provision about compliance notices is included in sections 42 to 48 of the 2015 Act. Compliance notices may be issued by authorised officers of the appropriate enforcement authority. In this case, the enforcement authority would be local authorities acting as food authorities.

Compliance notice

Authorised officers of food authorities will have the power to issue compliance notices in relation to an offence under the regulations. A compliance notice will require a person or business to take steps to ensure they stop committing the offence. A notice can only be issued if the authorised officer is satisfied to the "specified standard" that the person has committed an offence.

In line with the Food (Scotland) Act 2015 (Compliance Notices) Regulations 2023 (the 2023 Regulations), the specified standard of proof is the balance of probabilities. This means that an officer needs to be satisfied that the offence has been committed, on the balance of probabilities, before issuing a notice.

The steps required to comply will be set out in the notice itself.

The information that needs to be contained in the notice is set out in section 43 of the 2015 Act. It must, in particular, include the period of time within which the required steps must be taken - as determined by the authorised officer. The period must not be less than the “specified period”. In line with the 2023 Regulations, the specified period for these offences will be 14 days from the date the notice was issued.

The Act provides that, if the person complies with the notice, then they cannot be convicted of the offence. They also cannot have criminal proceedings brought against them in respect of the offence while a notice is still in force. A compliance notice cannot be issued in relation to an offence if a notice has previously been issued in relation to the same offence arising out of the same act or omission or if criminal proceedings have already been brought.

Failure to comply with a compliance notice is an offence, for which a person is liable on summary conviction to a fine not exceeding level 5 on the standard scale (£5,000).

A person or business may appeal to a sheriff against the decision to issue the compliance notice. Appeal is by way of summary application and must be made before the end of "relevant period" - being the earlier of either the compliance period or a period of one month beginning with the date the notice was issued. If a person appeals, the compliance period is suspended while the appeal is pending. Details of the appeals process are provided in section 48 of the 2015 Act.

Fixed penalty notices

The Food (Scotland) Act 2015 also provides for the possibility of issuing fixed penalty notices in relation to “relevant offences” under food legislation. This would allow enforcement authorities to issue fixed penalty notices (up to £2500) as an alternative to prosecution.

These provisions have not yet been fully implemented across food legislation, and Regulations would need made before fixed penalty notices could be available for breaches of the regulations. It is expected that Regulations will be brought forward to provide for fixed penalty notices in future.

Online enforcement

Businesses in scope of the policy are encouraged to discuss compliance matters with local authorities who can be contacted for support.

ASA’s role in enforcement of online promotions restrictions

The Advertising Standards Authority (ASA) is the UK’s independent advertising regulator. They have been administering the UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (written and maintained by the Committee of Advertising Practice (CAP)) for over 50 years and the UK Code of Broadcast Advertising (written and maintained by Broadcast Committee of Advertising Practice) for over 15 years, with their remit further extended in 2011 to include advertising claims on companies’ own websites and in social media spaces under their control.

The ASA might be made aware of a relevant promotion through its complaint handling or otherwise identify one in the course of its proactive monitoring activities.

These regulations only apply to volume price promotions and location restrictions pertaining to specified food sold in qualifying businesses. The regulations act independently of the existing CAP Code.

If a piece of content is in scope of the promotions restrictions and potentially in breach of the UK advertising codes, and this comes to the attention of the ASA, then it will refer the matter to the relevant enforcement authorities. Compliance with these regulations takes precedence over the non-statutory UK advertising codes.

The ASA will refer cases it identifies to the relevant enforcement authorities for action.