PART 2Meaning of specified food and qualifying business

Specified food

regulation 3 + 3.—(1) For the purposes of these Regulations, “specified food” is food contained in a prepacked food item which—

regulation 3 1 a + (a)is Schedule 1 food,

regulation 3 1 b + (b)is less healthy (as defined in paragraph (5)), and

regulation 3 1 c + (c)is not food to which paragraph (6) (charity food sales) applies.

term schedule 1 food + (2) For the purposes of these Regulations, “Schedule 1 food” means food falling within a category specified in Schedule 1 to these Regulations (categories of specified food).

(3) Where a prepacked food item contains more than one type of food, all of the food contained in the item is to be treated for the purposes of paragraph (1)(a) as Schedule 1 food where one (or more) of the types of food contained in the item would, on its own, be Schedule 1 food.

(4) Where a product contains multiple items, of which one (or more) is a prepacked food item containing specified food, the entire product is to be treated as specified food.

(5) For the purposes of this regulation—

regulation 3 5 a + (a)food that is not a drink is less healthy if it scores 4 or more points in accordance with the Nutrient Profiling Technical Guidance;

regulation 3 5 b + (b)a drink is less healthy if it scores 1 or more points in accordance with the Nutrient Profiling Technical Guidance.

(6) This paragraph applies to food which is—

regulation 3 6 a + (a)provided by a charity, in the course of its charitable activities, free or for a price which is less than the cost of providing that food, or

regulation 3 6 b + (b)offered for sale by or on behalf of a charity to raise funds for its charitable activities at a single event.

(7) For the purposes of paragraph (6)—

regulation 3 7 a + (a)term charity + “charity” has the meaning given by section 1 of the Charities Act 2011(1);

regulation 3 7 b + (b)term charitable activity + “charitable activity” means an activity carried out for a charitable purpose, other than primarily for the purpose of raising funds;

regulation 3 7 c + (c)term charitable purpose + “charitable purpose” has the meaning given by section 2(1) of the Charities Act 2011.

Qualifying businesses

regulation 4 + 4.—(1) For the purposes of regulations 5 (price promotion restriction), 6 (in store presentation restriction) and 7 (online presentation restriction) a business is a “qualifying business” if—

regulation 4 1 a + (a)a person offers, in the course of carrying on the business, any prepacked food item for sale (whether in store or on an online marketplace) to consumers,

regulation 4 1 b + (b)on the first day of the financial year during which any such offer for sale took place, the business had 50 or more employees, and

regulation 4 1 c + (c)the business is not—

regulation 4 1 c i + (i)a care home;

regulation 4 1 c ii + (ii)an educational institution;

regulation 4 1 c iii + (iii)a restaurant.

(2) For the purposes of regulation 8 (drink refill promotion restriction) a business is a “qualifying business” if—

regulation 4 2 a + (a)a person offers, in the course of carrying on the business, any drink to which regulation 8 applies for sale (in store) to consumers,

regulation 4 2 b + (b)on the first day of the financial year during which any such offer for sale took place, the business had 50 or more employees, and

regulation 4 2 c + (c)the business is not—

regulation 4 2 c i + (i)a care home;

regulation 4 2 c ii + (ii)an educational institution.

(3) For the purposes of determining how many employees a business has, a business that is carried on pursuant to a franchise agreement is to be treated as part of the business of the franchisor and not as a separate business carried on by the franchisee.

(4) A “franchise agreement” exists where—

regulation 4 4 a + (a)one undertaking (“the franchisee”) and another undertaking (“the franchisor”) agree that the franchisee carries on a business activity which includes the sale or distribution of food (“the franchise business”), and

regulation 4 4 b + (b)paragraphs (5) and (6) apply to the franchise business.

(5) This paragraph applies if the following are agreed by the franchisor—

regulation 4 5 a + (a)the food provided in the franchise business,

regulation 4 5 b + (b)the internal or external appearance of the premises where the franchise business is carried on, and

regulation 4 5 c + (c)the business model used for the operation of the franchise business.

(6) This paragraph applies if the matters referenced in paragraph (5) are similar to those of other undertakings in respect of which the franchisor has entered into comparable contractual arrangements.

(7) For the purposes of this regulation—

regulation 4 7 a + (a)the employees of a business are the persons who are employed for the purposes of the business;

regulation 4 7 b + (b)term care home + “care home” means a place in Wales at which a care home service, within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016(2), is provided wholly or mainly to persons aged 18 or over and which only provides food to residents of that care home and charges for that service as part of the cost of the accommodation;

regulation 4 7 c + (c)term contract of employment + “contract of employment” means a contract of service, whether express or implied, and (if it is express) whether oral or in writing;

regulation 4 7 d + (d)term educational institution + “educational institution” means an institution providing only education where that education is provided wholly or mainly to pupils below the age of 18;

regulation 4 7 e + (e)term employee + “employee” means an individual who has entered into, or works under, a contract of employment, whether that contract is for full-time or part-time employment;

regulation 4 7 f + (f)term restaurant + “restaurant” means a business whose premises are used mainly for the preparation or sale of food intended for immediate consumption, whether on or off the premises (including a café, coffee shop, fast food or takeaway business).