Price controls on essential food items: consultation paper

Annex A: Draft Legislative Provisions

Food Price Cap (Scotland) Bill

[Pre-Introduction]

An Act of the Scottish Parliament to make provision about the maximum price at which certain food products may be sold by certain retailers, and for connected purposes.

Part 1

Key concepts

Duty to sell certain foods at or below price cap

1 Duty to sell specified food products at or below price cap

(1) A qualifying business offering for sale a food product of a specified description to consumers in Scotland at particular premises must comply with the duty in subsection (2).

(2) The duty is to offer for sale at the premises at least one type of food product falling within that description at or below the applicable price cap.

(3) The duty in subsection (2) applies at all times during which the qualifying business is offering for sale a food product of that description at those premises.

(4) But the obligation to comply with the duty in subsection (2) does not apply—

(a) in circumstances prescribed by the Scottish Ministers in regulations,

(b) during any period in which the operation of subsection (1) and (2) is suspended in accordance with section 7.

(5) In this section, “premises” means any place and, in relation to food products offered for sale online, includes a website or an application.

(6) In this Act—

“applicable price cap” in relation to a food product of a specified description means the price cap relating to that description of food product by virtue of regulations made under section 6,

“food” has the meaning given in section 1(1) of the Food Safety Act 1990,

“food product of a specified description” means a food product of a description specified in accordance with section 4,

“qualifying business” has the meaning given in section 5,

“sale” means sale by retail.

(7) References in this Act—

(a) to offering a food product for sale include exposing it for sale,

(b) to a qualifying business offering a food product for sale include a qualifying business offering it for sale online on a website or application.

2 Non-compliance with duty: volume promotions

(1) Unless subsection (2) applies, a qualifying business does not comply with the duty in section 1(2) as regards a particular food product of a specified description by offering a food product of that description for sale together with other items at a composite price.

(2) This subsection applies if the composite price is at or below the applicable price cap.

(3) In this section, “composite price” means the total price at which two or more items are offered together for sale (whether or not any of the items are offered at no cost).

3 Price cap duty: further provision

(1) The Scottish Ministers may by regulations make further provision about, or in connection with, the duty in section 1(2).

(2) Regulations under subsection (1) may, in particular, make provision for or about—

(a) the circumstances in which the duty in section 1(2) is, or is not, to be treated as having been complied with,

(b) the application of the duty in section 1(2) in circumstances where food of a specified description is offered for sale online on a website or application,

(c) the definition of "premises" in section 1(5).

(3) Regulations under subsection (1) may modify this Part.

Power to specify food products

4 Specified food products

(1) The Scottish Ministers may by regulations specify descriptions of food products for the purposes of section 1.

(2) Those regulations may describe food products by reference to particular features (or a range or combination of features) which the Scottish Ministers consider appropriate, including—

(a) quantity (for example, number, volume or weight),

(b) packaging (for example, size or the number of items in a pack),

(c) ingredients,

(d) nutritional content,

(e) condition (for example, fresh or frozen).

Meaning of qualifying business

5 Qualifying business

(1) For the purposes of this Act, a business is a qualifying business during a financial year in which the business offers for sale a food product of a specified description if—

(a) at the end of the previous financial year—

(i) the business had more than 250 employees,

(ii) the business had a turnover of more than £250 million, and

(iii) more than 50% of that turnover related to the sale of groceries, and

(b) the business is not an exempt business.

(2) A business is an exempt business if it wholly or mainly offers food for sale—

(a) as part of a takeaway food service, or

(b) both as part of a takeaway food service and for immediate consumption on the premises of sale.

(3) In this section—

(a) “groceries” means one or more of the following—

(i) food, other than food sold exclusively for consumption on the premises of sale,

(ii) drinks (alcoholic and non-alcoholic), other than drinks sold exclusively for consumption on the premises of sale,

(iii) pet food,

(iv) cleaning products,

(v) toiletries and household goods, other than petrol, clothing, DIY products, financial services, pharmaceuticals, newspapers, magazines and books, greetings cards, CDs, DVDs, videos and audio tapes, toys, plants, flowers, perfumes, cosmetics, electrical appliances, kitchen hardware, gardening equipment, books, tobacco and tobacco products,

(b) a reference to a financial year, in relation to a business, is a reference to a financial year of the business.

(4) The Scottish Ministers may by regulations modify this section.

Power to set price cap

6 Price cap

(1) The price cap applicable to a particular specified description of food product is the maximum price relating to a food product of that description as set out in regulations made by the Scottish Ministers.

(2) The power in subsection (1) includes power to—

(a) specify the manner in which the price cap is to be calculated in relation to the specified description of food product,

(b) provide for the uprating of the price cap at prescribed intervals in line with—

(i) inflation, or

(ii) a rate set out in the regulations.

Power to suspend and revive duty

7 Power to suspend and revive duty

(1) The Scottish Ministers may by regulations—

(a) suspend the operation of—

(i) section 1(1) and (2), or

(ii) section 1(1) and (2) in relation to a food product of a specified description,

(b) revive the operation of provisions that are suspended under paragraph (a).

(2) Sections 15 to 17 of the Interpretation and Legislative Reform (Scotland) Act 2010 (effect of repeals) apply to the suspension of a provision by regulations under subsection (1)(a) as if the provision had been repealed by an Act.

(3) The powers in subsection (1) may be exercised more than once in relation to the same provision.

(4) Regulations under subsection (1) may modify any enactment (including this Act).

Further provision about the exercise of powers under this Part

8 Requirement to have regard to certain matters

(1) When exercising powers under section 4 or 6 the Scottish Ministers must have regard to the matters listed in subsection (2).

(2) Those matters are—

(a) the general affordability of food (particularly as regards persons on low incomes),

(b) the Scottish Ministers’ policies or strategies relating to healthy eating,

(c) guidance on nutrition,

(d) the impact of the exercise of the power on—

(i) producers and retailers of food, and

(ii) such other businesses as the Scottish Ministers consider may be impacted by the exercise of the power,

(e) consumer behaviour as regards the purchase of food,

(f) food security, and

(g) such other matters as the Scottish Ministers consider appropriate.

(3) But the duty in subsection (1) applies to the matters listed in paragraphs (a) to (f) of subsection (2) only to the extent that they are relevant to the particular exercise of the powers.

9 Requirement to consult before making regulations

Before laying a draft of a Scottish statutory instrument containing regulations under this Part, the Scottish Ministers must consult such persons as they consider appropriate.

Part 2

Enforcement

10 Enforcement of price cap duty

(1) A local authority must enforce the duty in section 1(2) within its area in accordance with this Part.

(2) In this Act, “authorised officer”, in relation to a local authority, means an individual authorised by the authority to exercise functions conferred on authorised officers under or by virtue of this Part.

(3) An authorised officer carrying out functions under or by virtue of this Part must, if requested to do so, produce evidence of the officer’s authority.

11 Compliance notices

(1) An authorised officer may give to a qualifying business a compliance notice in relation to compliance with the duty in section 1(2).

(2) A “compliance notice” is a notice requiring the qualifying business to which it is given to take steps to ensure that the qualifying business complies with the duty.

(3) An authorised officer may give a compliance notice to a qualifying business only if the officer has reasonable grounds to believe that the qualifying business is failing, or has failed, to comply with the duty.

12 Failure to comply with compliance notice

(1) A qualifying business that fails to comply with a compliance notice commits an offence.

(2) A qualifying business that commits an offence under subsection (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum,

(b) on conviction on indictment, to a fine.

13 Power to make further provision about enforcement

(1) The Scottish Ministers may by regulations make further provision about enforcement of the duty in section 1(2).

(2) Regulations under subsection (1) may in particular include provision—

(a) about the provision of information,

(b) about record keeping,

(c) prescribing the form of a compliance notice to be given under section 11,

(d) conferring powers of entry on authorised officers,

(e) conferring powers of inspection, search and seizure on authorised officers,

(f) conferring functions (including functions involving the exercise of a discretion) on a person,

(g) creating or applying offences or penalties in connection with—

(i) a failure to comply with the duty in section 1(2),

(ii) enforcement of that duty,

(h) creating defences to an offence under this Act, and

(i) appeals.

(3) The maximum penalty that may be provided for in regulations creating or applying an offence under subsection (1) is—

(a) on summary conviction, a fine not exceeding the statutory maximum,

(b) on conviction on indictment, a fine.

(4) Regulations under subsection (1) may modify this Part.

Part 3

Review and expiry

14 Review of operation of Act

(1) The Scottish Ministers must, as soon as practicable after the end of the reporting period—

(a) carry out a review of the operation of this Act,

(b) prepare a report on the findings of the review, and

(c) publish the report.

(2) The Scottish Ministers may delegate any or all of their functions under subsection (1) to such person as they consider appropriate.

(3) When carrying out the review, the Scottish Ministers (or, if applicable, the delegatee) must consult such persons as the Scottish Ministers (or, if applicable, the delegatee) consider appropriate.

(4) The Scottish Ministers must, as soon as practicable after a report on the findings of the review is prepared, lay the report before the Scottish Parliament.

(5) In this section—

“the delegatee” means the person to whom the Scottish Ministers have delegated their functions under subsection (2),

“the reporting period” means such period as the Scottish Ministers consider appropriate being a period of not less than 4 years, nor more than 6 years, beginning with the day on which the first regulations made under section 6 come into force.

15 Expiry

(1) Sections 1 to 14 expire on the proposed expiry date unless regulations are made under subsection (2).

(2) The Scottish Ministers may by regulations, after the end of the reporting period but before the proposed expiry date, provide that those provisions continue in effect despite subsection (1).

(3) The Scottish Ministers may by regulations make such provision (including provision modifying any enactment) as may be necessary or expedient in consequence of the expiry of sections 1 to 14.

(4) In this section—

“the proposed expiry date” means the earlier of—

(a) the last day of the period of one year beginning with the day on which the report under section 14(1)(c) is published, or

(b) the last day of the period of 8 years beginning with the day on which the first regulations made under section 6 come into force,

“the reporting period” has the meaning given in section 14(5).

(5) Before laying a draft of a Scottish statutory instrument containing regulations under subsection (2), the Scottish Ministers must consult such persons as they consider appropriate.

Part 4

Final provisions

16 Regulation-making powers

(1) Any power to make regulations under this Act includes the power to make—

(a) different provision for different purposes or areas,

(b) incidental, supplementary, consequential, transitional, transitory or saving provision.

(2) Regulations under Part 1 are subject to the affirmative procedure unless section 17(1) applies to them.

(3) Regulations under section 13 or 15 are subject to the affirmative procedure.

(4) Regulations under section 18—

(a) which add to, replace or omit any part of the text of an Act are subject to the affirmative procedure,

(b) otherwise, are subject to the negative procedure.

(5) This section does not apply to regulations under section 19.

17 Procedure for urgent regulations

(1) This subsection applies to regulations if the Scottish statutory instrument containing the regulations includes a declaration that the Scottish Ministers are of the opinion that, by reason of urgency, it is necessary to make the regulations without their being subject to the affirmative procedure.

(2) Where subsection (1) applies—

(a) section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010 does not apply to the regulations,

(b) the Scottish statutory instrument containing the regulations must be laid before the Scottish Parliament as soon as practicable after they are made, and

(c) the regulations cease to have effect at the end of the period of 28 days beginning with the day on which they are made unless, during that period, the Scottish statutory instrument containing them is approved by a resolution of the Scottish Parliament.

(3) In calculating the period of 28 days mentioned in subsection (2)(c), no account is to be taken of any time during which the Scottish Parliament is—

(a) in recess for more than 4 days, or

(b) dissolved.

(4) Regulations ceasing to have effect by virtue of subsection (2)(c) neither—

(a) affects anything previously done under the regulations before they ceased to have effect, nor

(b) prevents new regulations being made.

(5) Where subsection (1) applies to regulations made under Part 1, the Scottish Ministers must explain why they are of the opinion that, by reason of urgency, it is necessary to make the regulations without their being subject to the affirmative procedure.

(6) Where subsection (1) applies to regulations made under Part 1, the regulations must include provision for them to expire on a day specified in the regulations.

(7) Subsection (6) does not apply where the regulations amend regulations in which the provision mentioned in subsection (6) has already been included.

(8) Where subsection (1) applies but the regulations—

(a) revoke (in whole or in part) previous regulations made under this Act, and

(b) do—

(i) nothing else, or

(ii) nothing else except make transitional, transitory or saving provision related to the revocation,

the Scottish statutory instrument containing the regulations must be laid before the Scottish Parliament as soon as practicable after they are made (and subsection (2)(b) and (c) do not apply to the regulations).

18 Ancillary provision

(1) The Scottish Ministers may by regulations make any incidental, supplementary, consequential, transitional, transitory or saving provision they consider appropriate for the purposes of, in connection with or for giving full effect to this Act or any provision made under it.

(2) Regulations under this section may modify any enactment (including this Act).

19 Commencement

(1) This Part comes into force on the day after Royal Assent.

(2) The other provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint.

(3) Regulations under subsection (2) may—

(a) include transitional, transitory or saving provision,

(b) make different provision for different purposes.

20 Short title

The short title of this Act is the Food Price Cap (Scotland) Act 2026.