Communications Act 2003 (c. 21)

[F1 PART 4C U.K. Online advertising of less healthy food and drink

Textual Amendments

F1 Pt. 4C inserted (28.6.2022) by Health and Care Act 2022 (c. 31), s. 186(4), Sch. 18 para. 3

Advertising of less healthy food and drink U.K.

368Z16 Financial penalties U.K.

(1) The amount of a penalty imposed on a person under section 368Z15 is to be such amount not exceeding the maximum penalty as the appropriate regulatory authority determine to be—

(a) appropriate, and

(b) proportionate to the contravention in respect of which it is imposed.

(2) The maximum penalty is—

(a) in a case in which the person carries on a relevant business, an amount not exceeding the greater of—

(i) 5% of the turnover of the person’s relevant business for the relevant period, and

(ii) £250,000;

(b) in any other case, £250,000.

(3) For the purposes of this section—

(a) a person’s “relevant business” is so much of any business carried on by the person as involves or is associated with the manufacture or sale of less healthy food or drink products;

(b) “relevant period”, in relation to a person’s relevant business, means—

(i) except in a case falling within sub-paragraph (ii) or (iii), the period of one year ending with the 31 March before the time at which the penalty is imposed;

(ii) in the case of a person who at the time at which the penalty is imposed has been carrying on that business for a period of less than a year, the period, ending with that time, during which the person has been carrying it on;

(iii) in the case of a person who at the time at which the penalty is imposed has ceased to carry on that business, the period of one year ending with the time when the person ceased to carry it on;

(c) the amount of the turnover of a person’s relevant business for the relevant period is to be calculated by the appropriate regulatory authority in accordance with the following sub-paragraphs—

(i) the amount is to be calculated in conformity with accounting practices and principles which are generally accepted in the United Kingdom;

(ii) the amount is limited to the amounts derived by the person from the relevant business after deduction of sales rebates, value added tax and other taxes directly related to turnover;

(iii) where the person’s relevant business consists of two or more undertakings that each prepare accounts, the amount is to be calculated by adding together the turnover of each, save that no account is to be taken of any turnover resulting from the supply of goods or the provision of services between them.

(4) In determining the amount of a penalty under subsection (1) the appropriate regulatory authority must have regard to any statement published by OFCOM under section 392 (guidelines to be followed in determining amount of penalties).

(5) A financial penalty imposed under this section, if not paid within the period fixed by the appropriate regulatory authority, is to be recoverable by the appropriate regulatory authority as a debt due to them from the person obliged to pay it.

(6) Where a financial penalty is imposed under this section in respect of matters appearing to OFCOM to have a connection with Northern Ireland and no connection with the rest of the United Kingdom, the penalty must be paid into the Consolidated Fund of Northern Ireland.

(7) In any other case, a financial penalty imposed under this section is to be paid into the Consolidated Fund of the United Kingdom.]