9. Legislative framework (Q 13)
9.1. The consultation paper discussed the necessity of ensuring the legislation needed to implement the policy is sufficiently flexible, that it is future-proof, and that it develops over time to take into account changes in the underlying evidence base or promotion and marketing practices. The paper proposed that, whatever the overall legislative framework, Ministers would, following consultation, make provision in secondary legislation for the foods and types of promotions and marketing that would fall within and outwith the scope of restrictions and any exemptions. Respondents were asked to comment on the proposed flexible approach.
Question 13: Please comment on the proposed flexible approach outlined in section 9 [of the consultation paper].
9.2. In total 495 respondents gave a specific response to the question (i.e. excluding blanks, ‘no comment’ and ‘don’t know’ answers).
9.3. Although this was an open question (i.e. not a tick box question), written explanations were analysed to try to quantify what proportion indicated overall agreement and disagreement with the proposed flexible approach. It is important to note that a number of respondents gave no overall indication, but instead made a specific point or points in relation to the content of the approach. Therefore, their overall stance (if indeed they had one) for this question is not known. The figures below therefore provide only a rough indication and should be interpreted with caution.
9.4. Nearly three-fifths of the organisation respondents gave a written explanation that indicated agreement with the flexible approach, nearly a fifth indicated disagreement and over a fifth gave no overall indication.
9.5. Close to half of the individual respondents gave a written explanation that indicated agreement with the flexible approach, nearly two-fifths indicated disagreement and less than a fifth gave no overall indication.
9.6. Breaking down the organisation respondents described above, over four-fifths of the non-industry organisation respondents indicated agreement with the flexible approach to enforcement. Close to half of the industry organisation respondents indicated disagreement, over a third gave no overall indication and just under a fifth indicated agreement.
Agreement with proposals for legislative framework
9.7. Most of those indicating agreement with the proposals simply stated their support without providing further detail on their reasoning. Those that offered further comment, most frequently (but few) noted that the approach needed to be specific and clear in order to be enforceable and that flexibility should not leave it open to abuse. These views were held by both individual respondents and by few public sector respondents. One benefit of flexibility noted by one retailer respondent was that it would allow the policy to be trimmed back in future as cooking and eating habits improve. One third sector respondent noted the merit of using secondary legislation which would enable the Scottish Government to align with the wider UK plans to restrict promotions, which would have the advantage of creating coherence, limiting variation and limiting disruption to the industry.
Disagreement with proposals for legislative framework
9.8. Most individual respondents that disagreed with the approach indicated that this was on the basis that they disagreed with the overall proposal of introducing mandatory restrictions and therefore by default disagree with the proposed legislative framework.
9.9. Other reasons for disagreement with the proposals included:
- Few individual respondents and few industry organisation respondents expressed concern that future proofing the legislation by allowing revisions via secondary legislation would lack the democratic scrutiny that primary legislation is subject to and therefore would increase the chances that the approach adopted is not appropriate nor proportionate; and
- Few manufacturer and industry representative body respondents held concerns that the flexible approach would be unfair to businesses who would have to keep making changes as requirements are changed and indeed that it may be difficult for businesses to keep track of changing requirements. They felt that any proposed changes should first be subject to consultation with industry and stakeholders.
9.10. Few individual respondents felt there was a need for a strict (rather than flexible) approach on the basis that this should ensure compliance and prevent abuse.
Considerations for legislation
9.11. Some of the respondents (some individuals, few industry representative bodies and few public sector organisations) that did not express overall agreement or disagreement highlighted that the proposals for legislation were relatively vague and that they would need more detail on what the legislation would look like before they could comment fully.
9.12. Few respondents (few individuals, a public sector respondent and a retailer) highlighted a need to evaluate the policy to understand its impact and identify any required refinements.