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Food Standards Scotlands response to Soft Drinks Industry Levy Consultation

FSS consultation response

About us

Food Standards Scotland (FSS) was established by the Food (Scotland) Act, 2015 as the public sector food body for Scotland. FSS is a non-ministerial office, part of the Scottish Administration, but separate from the Scottish Government. Its role is to ensure that information and advice on food safety and standards, nutrition and labelling is independent, consistent, evidence-based and consumer focused. In relation to diet and nutrition our statutory objective is to improve the extent to which members of the public have diets which are conducive to good health.

FSS proposed package of measures for improving the Scottish Diet

In January 2016, FSS approved proposals for urgent action to reduce diet related disease given the lack of progress towards the Scottish Dietary Goals over the past 15 years. The proposals focused on both influencing food choices and improving the food environment and included taxation of sugar sweetened beverages (SSB) and other high sugar foods to create price differentials as a means of shifting consumer behaviour towards lower sugar, healthier foods and drinks.

The Board paper considered the evidence showing that sugar taxation leads to a reduction in purchases proportionate to the level of tax applied, and that a tax of 10% to 20% would be necessary to have a significant impact on purchases, consumption, and ultimately on population health. Available evidence on sales data from various countries that have implemented a tax on sugar products, not just SSB, also aligns with these findings to suggest that purchases have reduced since the tax was implemented. This suggests that taxation mechanisms, used to alter price,  can be applied to other calorie-dense foods as well as SSB.

FSS view on the Soft Drinks Industry Levy (SDIL)

FSS acknowledges the soft drinks industry levy (SDIL) as a welcome measure that  may drive further reformulation of soft drinks. However, Food and Health are both devolved policy areas.  Whilst FSS considers that interventions to improve the Scottish diet should, in general, apply across all age groups, policy in England targets effort more narrowly on tackling childhood obesity. 

Recommendations agreed by FSS for improving Scotland’s diet would therefore            

have supported application of a broader sugar tax to meet our dietary policy objectives for Scotland.  The principal aim of the SDIL, set out in the 2016 budget statement and incorporated into the more recent Childhood Obesity Action Plan, clearly aligns with public health priorities identified for England. We consider that, where reserved powers on taxation are predicated on supporting food or health policies, this should take full account of the impact on the dietary policy objectives of the devolved Administrations. It is unclear the extent to which the SDIL will effect change in formulation. Taken together with the potential for the soft drinks industry to smooth costs across their product range, resulting in minimal price differentials between high and low sugar drinks, there is a clear risk of the levy having little impact on consumer behaviour and  therefore sugar intake.

The principle that small businesses should be exempt from the levy is accepted on grounds of practicality and proportionality, but the contribution of sugars added to soft drinks by this sector should be included in the evaluation of the levy.

FSS would welcome commitment by the UK Government to evaluate fully the impact of the levy on health outcomes, as quickly as possible, to allow devolved Administrations to consider the impact of this measure. It is therefore important to ensure that success criteria are specified from the outset.   If the SDIL does not show any measurable health impacts, FSS would be interested to know what alternative measures the UK government would consider adopting.

We note that the legal framework for the SDIL is based on English regulations and would therefore seek assurance that HM Treasury has  checked for compatibility with equivalent Scottish regulations.

The SDIL falls short of fulfilling the expected outcomes of a sugar tax as recommended by FSS in January 2016, and we are concerned that it will reduce the scope for FSS to initiate discussion of further fiscal measures. FSS would therefore welcome a more comprehensive approach to sugar taxation for high sugar foods and drinks, compared to the current proposals set out within the SDIL.  


Specific answers to questions raised in the levy consultation

Q 1: Are you:

a) a business?*

b) an organisation? If so, please provide details (e.g. trade / health body) c) an individual

*If you answered ‘a) a business’ please specify which of the following describe your business

Food Standards Scotland is the public sector food body for Scotland, a non-ministerial government department part of the Scottish Administration, alongside, but separate from, the Scottish Government. 

Q 5a: Do respondents agree that a definition of ‘added sugars’ as set out in the consultation is sufficient to capture the types of sugar commonly added to soft drinks?

In public health terms there is no difference between sugar from fruit products compared with added sugar from other sources.  All drinks containing fruit products, with the exception of pure/ natural fruit juice and concentrated fruit juice , made up to the same concentration as natural juice, should be incorporated into the SDIL. This will ensure that added sugar is not simply replaced by fruit products for sweetening purposes.  We would strongly urge that a mechanism be found to include drinks containing fruit products within the levy.  If this is not included, it will be essential that evaluation of the levy takes account of the difference made to total contribution of added sugars in soft drinks.

Q 5b: If the above definition would be insufficient or could be improved, can respondents propose a suitable definition of sugar contained in UK regulations or guidance, or regulations/guidance from other jurisdictions, which would be suitable for the intentions of the soft drinks levy?

See  response to 5a above

Q 5.c – Do respondents agree that the Fruit Juices and Fruit Nectars (England)

Regulations 2013 provide a reasonable reference point for legislation which

achieves the aim of keeping pure fruit products outside of the scope of the

definition of added sugars?

See response to 5a above.   Only pure/ natural fruit juice and concentrated fruit juice made up to the same concentration as natural juice should be outside the scope on the basis that a 150ml serving counts towards 5 a day.  We disagree that other fruit products should be outside the scope of the levy.

Q6 – Would requiring liable producers and importers to pay the levy on cordials and dilutables at diluted volumes present reporting or compliance problems for particular businesses? If so, please provide evidence and suggest any alternative approaches.

We agree that the levy should be paid on cordials and dilutables at diluted volumes.

Q7 – Respondents are invited to submit views on the treatment of liquid drinks flavourings as regards the soft drinks industry levy.

We disagree that liquid drinks flavourings should be exempt from the levy, as these are often high sugar products and are widely used by large retail and catering chains. Adding these products can significantly increase the sugar content of drinks and therefore they should be considered in a similar way to dilutables.

Q8 – Do respondents agree that a minimum proportion of 75% milk is necessary to ensure that only nutrient-rich milk drinks are exempt from the levy? If not, what alternative test or treatment would you propose and why?

We agree with the principle of setting a minimum proportion of milk but disagree with setting this at 75%. It is much too low, allowing milk be used as a carrier of added sugars into children’s diets.  A  higher threshold of 95% would be more appropriate.

We have collected data on some commonly available milk based drinks [see attached tables in Annexe 1] to show their added sugar content to support this view.

Q10 – Do respondents agree with the proposed treatment of candy sprays, ice lollies, and dissolvable powders?

FSS agrees with the treatment of candy sprays and ice lollies but feel that dissolvable powders should also be within the scope of the levy and be treated in the same way as dilutables. Data collected on a number of powders for milk based drinks is attached in Annex 2 which shows that many products contain over 5g sugar/100ml when reconstituted as per manufacturer’s instructions.

Q11 – We seek evidence and views from respondents on the types of added-sugar low alcohol products that may be captured by the levy, and the appropriate approach to these products in the levy legislation.

FSS does not support the inclusion of low alcohol products in the SDIL as there is the  potential to jeopardise the harm reduction these products provide for consumers as alternatives to alcoholic beverages.

However, given our focus on dietary improvement across the population , as opposed to children only, FSS would like sugary alcoholic drinks to be included within the scope of the levy.

Q12 – We welcome views of health professionals and organisations in identifying whether there are any other criteria for deciding whether a particular soft drink should be out of scope of the levy for medical reasons.

FSS agrees that drinks that are licensed for medicinal use should be exempt from the levy.

Q13 - Respondents are invited to submit any evidence that the final levy design could have potentially adverse impacts on groups with protected characteristics.

The SDIL is designed to drive reformulation to reduce the sugar content of SSBs, and has been designed to minimise impact on consumers. However, the overall impact to the consumer is currently unknown; industry may smooth the cost across high and low sugar drinks with the overall outcome of very small price differentials between high and lower sugar drinks.  The evidence shows that higher prices are likely to reduce consumer purchases, at least in the short term so in order to have the most benefit to public health, price increases/differentials would have to be passed on to the consumer.

Once the levy has been enforced, the effect on the consumer should be fully monitored, particularly  with respect to positive or negative impacts on those from the lower socio-economic groups.

Q 20: Do respondents agree products which are given away free of charge should still be liable to the levy? If not, please provide examples of where relief may be appropriate and why.

FSS agrees that drinks distributed free of charge should be included in the levy.

Q 36 – Are there another other issues with the proposed registration and reporting requirements that you think we should know about?

FSS recognises the importance of setting up robust monitoring and evaluation of the levy, including providing baseline data and a full inequalities assessment. Furthermore we would welcome full commitment by the UK Government to evaluate fully the impact of the levy on health outcomes and on consumers (including assessment of any unintended consequences) as quickly as possible to allow the devolved Administrations to consider the impact of this measure on their dietary policy aims. 

Q 40 – Do respondents agree that the above proposals for compliance and penalties are appropriate?

From the  information provided, measures for compliance and penalties appear proportionate and to have incorporated ant-avoidance measures. However FSS would expect that compliance outcomes should be included as an integral part of the evaluation.

Annexe 1 - Milk Based Drinks

For Consideration in Relation to the Soft Drinks Industry Levy


Assumptions Used

  • 5.0g of lactose per 100ml of milk applied (lactose range from 4.8 to 5.0 g per 100ml) derived from McCance and Widdowson’s.1
  • The specific gravities of milk range from 1.03 to 1.04 but the value of 1.00 was applied to the below table.1



  • Green denotes product captured by the levy.
  • Red denotes products with an added sugar value of ≥ 5.0g.
Product % Milk in product Total Sugars in Product (gper 100ml) Lactose in Product (g per 100ml) Added Sygar (Total sugars - locatose) in product (g per 100ml) Ingredients List Data Source Data Accessed
Mars Milk (Captured by the levy) 74 12.8 3.70 9.10 Milk (2.2% Fat) (74%), Water, Glucose, Sugar, Whey Powder (from Milk), Cocoa Powder (0.6%), Stabilisers: Carrageenan, Guar Gum, Emulsifier: Mono and Diglycerides of Fatty Acids from Vegetable Source, Barley Malt Extract, Flavourings, Salt, Cane Molasses Tesco Website 15/09/2016
Tesco Chocolate Flavoured Milk 91 12.4 4.55 7.85 Milk (91%), Sugar, Dried Skimmed Milk, Fat Reduced Cocoa Powder, Milk Chocolate Powder (Sugar, Cocoa Mass, Dried Whole Milk, Cocoa Butter, Dried Skimmed Milk), Stabilisers (Carrageenan, Xanthan Gum, Calcium Sulphate) Tesco Website 15/09/2016
Frijj Chocolate Milkshake 92 10.8 4.60 6.20 1% Fat Milk (92%), Sugar, Buttermilk Powder, Fat Reduced Cocoa Powder, Stabilisers (Carrageenan, Cellulose Gum) Tesco Website 15/09/2016
Frijj Chocolate Fudge Brownie Milkshake 91 12.9 4.55 8.35 1% Fat Milk (91%), Sugar, Buttermilk Powder, Fat Reduced Cocoa Powder, Natural Flavouring, Stabilisers (Carrageenan, Cellulose Gum) Tesco Website 15/09/2016
Shaken Udder Chocolush Milkshake 92 9.7 4.60 5.10 Semi Skimmed Milk (92%), Sugar , Milk Chocolate (1.5%), Chocolate Powder (Sugar, Cocoa, Whole Milk Powder, Cocoa Butter, Skimmed Milk Powder), Fat Reduced Cocoa Powder, Stabilisers (Cellulose Gum, Carageenan), Natural Flavourings, Salt Tesco Website 15/09/2016
Starbucks Frappuccino Coffee Drink 75 10.0 3.75 6.25 Semi Skimmed Milk (75%) , Starbucks® Arabica Coffee (Water, Coffee Extract) 18.8% , Sugar 6% , Natural Coffee Flavouring , Acidity Regulator (Potassium Carbonate) , Coffee and Sugar traded in compliance with Fairtrade Standards, total 97%, excluding liquid ingredients . Asda Website 15/09/2016
Asda Strawberry Flavoured Milk 93 10.0 4.65 5.35 1% Fat Milk (93%) , Sugar , Skimmed Milk Powder , Concentrated Strawberry Juice (0.5%) , Stabilisers [Guar Gum, Carrageenan, Xanthan Gum] , Colour (Beetroot Red) , Flavouring . Asda Website 15/09/2016
Galaxy Milkshake 78 11.6 3.90 7.70

Milk (0.54% Fat) (78%),Water, Fructose,

 Whey Powder (from Milk),


 Milk Chocolate (1%): Sugar, Cocoa Butter, Skimmed Milk Powder, Cocoa Mass, Lactose (from Milk), Palm Fat, Whey Powder (from Milk), Milk Fat, Emulsifier: Soya Lecithin, Vanilla Extract,

 Barley Malt Extract,

 Stabilisers: Carrageenan, Guar Gum,

 Emulsifier: Mono and Diglycerides of Fatty Acids from Vegetable source,

 Modified Starch,

 Natural Flavouring,

 Milk Chocolate contains Milk Solids 14% minimum and Cocoa Solids 25% minimum,

 Milk Chocolate contains Vegetable Oil in addition to Cocoa Butter

Sainsbury’s Website 15/09/2016
Happy Monkey Milkshake Strawberry 95 9.7 4.75 4.95 Skimmed Milk (53%), Whole Milk (42%), Sugar, Strawberry Juice from Concentrate (0.2%), Strawberry Flavour, Stabiliser: Carrageenan, Dextrose, Colour: Carmine Tesco Website 15/09/2016
For Goodness Shakes Protein Chocolate 92 4.5 4.60 0.00 Skimmed Milk (46%), Semi-Skimmed Milk (46%), Water, Cocoa (1.25%), Milk Protein Concentrate, Stabilisers (Cellulose, Cellulose Gum, Carrageenan), Vitamin and Mineral Mix (Vitamin C, Magnesium Citrate, Vitamin E, Niacin, Vitamin A, Zinc Lactate, Folic Acid, Vitamin K, B6, D), Flavouring, Sweetener (Sucralose) Tesco Website 15/09/2016
Frijj Reduced Sugar Strawberry 98 5.0 4.90 0.10

Skimmed Milk (78%), Whole Milk (20%), Buttermilk Powder, Fructose, Stabilisers (Carrageenan, Cellulose Gum), Flavourings, Colour (Beetroot Red), Sweeteners (Acesulfame K, Sucralose)Annex 2 - Powders for Milk Based Drinks

Tesco Website 15/09/2016

 Annex 2 - Powders for Milk Based Drinks

For Consideration in Relation to the Soft Drinks Industry Levy


Assumptions Used

  • 5.0g of lactose per 100ml of milk applied (lactose range from 4.8 to 5.0 g per 100ml) derived from McCance and Widdowson’s.1
  • The specific gravities of milk range from 1.03 to 1.04 but the value of 1.00 was applied to the below table.1


  • Red denotes all products with an added sugar value of ≥ 5.0g.
Product Dilution Recommended by Manufacturer (g per 100ml of milk) % Milk in Product when Diluted Total Sugars in Product when Diluted (g per 100ml) Lactose in Product when Diluted (g per 100ml) Added Sugar (Total sugars – lactose) in Product when Diluted (g per 100ml) Ingredients List Data Source Date Accessed
Tesco Strawberry Milkshake Mix 300G

Each 20g serving with 200ml semi-skimmed milk i.e.

10g of powder  to 100ml of milk

90.9 12.7 4.55 8.15 Sugar, Dextrose, Glucose Syrup, Colour (Beetroot Red), Strawberry Powder, Acidity Regulator (Citric Acid), Vitamin C, Niacin, Flavouring, Vitamin B6, Riboflavin, Thiamin, Vitamin A, Folic Acid, Vitamin D Tesco Website 15/09/2016
Asda Chosen By You Chocolate Flavoured Milkshake Mix Each 15g with 200ml semi-skimmed milk i.e. 7.5g of powder to 100ml of milk 93.0 11.0 4.65 6.35 Sugar , Fat Reduced Cocoa Powder (22%) [Fat Reduced Cocoa Powder, Emulsifier (Lecithins)] , Salt , L-Ascorbic Acid (Vitamin C) , Flavourings (contains Milk) , Niacin (B3) , Riboflavin (B2) , Vitamin B6 , Thiamin (B1) , Vitamin A , Folic Acid , Vitamin D . Asda Website 15/09/2016
Nesquik Chocolate Powder 500G 13.8g of Nesquick and 200ml semi skimmed milk i.e. 6.9g of powder to 100ml of milk 93.5 10.2 4.68 5.52


 Fat Reduced Cocoa Powder (21%),


 Emulsifier: Soya Lecithin,

 Vitamins: Sodium Ascorbate (Vitamin C),

 Thiamin Hydrochloride (Thiamin),

 Cholecalciferol (Vitamin D),

 Minerals: Magnesium Carbonate,

 Ferric Pyrophosphate (Iron),

 Zinc Sulphate,


 Natural Flavouring

Sainsbury’s Website 15/09/2016
Nesquik Strawberry 500G 13g of Nesquik and 200ml semi skimmed milk i.e. 6.5g of powder to 100ml of milk 93.9 9.9 4.70 5.20

Sugar, Maltodextrin, Natural Flavourings, Natural Colour: Beetroot Red, Vitamins: Sodium Ascorbate (Vitamin C), Thiamin Hydrochloride (Thiamin), Cholecalciferol (Vitamin D), Minerals: Magnesium Carbonate, Ferric Pyrophosphate (Iron), Zinc Sulphate

Tesco Website 15/09/2016
Nesquik Hot Chocolate 400G 13.8g of Nesquik and 200ml of semi skimmed milk i.e. 6.9g of powder to 100ml of milk 93.5 10.1 4.68 5.42 Sugar, Fat Reduced Cocoa Powder (20%), Emulsifier: Soya Lecithin, Minerals (Ferric Pyrophosphate (Iron), Zinc Sulphate), Vitamins (C, Thiamin, D), Salt, Natural Flavouring Tesco Website 15/09/2016
Horlicks The Original Malted Milk Drink Traditional 25g serve in 200ml of semi-skimmed milk i.e. 12.5g of powder to 100ml of milk 88.9 10.4 4.45 5.95 WHEAT Flour (46%) (contains Calcium Carbonate, Ferric Pyrophosphate, Niacin and Vitamin B1) , Malted BARLEY (26%) , Dried Whey (MILK) , Sugar , Calcium Carbonate , Dried Skimmed MILK , Palm Oil , Salt , Vitamins (C, Niacin, E, Pantothenic Acid, B6, B2, B1, Folic Acid, A, Biotin, D, B12) , Ferric Pyrophosphate , Zinc Oxide , May contain traces of Soyabeans . Asda Website 15/09/2016
Ovaltine Original 25g of powder in 200ml semi-skimmed milk i.e. 12.5g of powder to 100ml of milk 88.9 11.2 4.45 6.75 Barley Malt Extract (73%) , Milk Serum Concentrate , Fat-Reduced Cocoa Powder (8%) , Sugar , Calcium Carbonate , Vegetable Oil (Rapeseed Oil) , Magnesium Carbonate , Vitamins (C, E, Niacin, A, Pantothenic Acid, B12, B6, B2, B1, Folic Acid, Biotin) , Iron , Zinc Sulphate , Salt Asda Website 15/09/2016
Cadbury Drinking Chocolate 500G 18g and 200ml of semi-skimmed milk i.e. 9g of powder to 100ml of milk 91.7 11.25 4.59 6.66


 Cocoa Powder,



 Sugar, Cocoa: traded in compliance with Fairtrade Standards, total 99%,

 Cocoa Solids: 25% minimum

Sainsbury’s Website 15/09/2016
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