Regulation 4 Qualifying business

(1)

For the purposes of regulations 5 (restriction on the volume price promotion of specified food), 7 (restriction on the placement of specified food in store) and 8 (restriction on the promotion of specified food online) a business is a “qualifying business” if—

(a)

a person offers, in the course of carrying on the business, any specified food for sale (whether in store or on an online marketplace) to consumers,

(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

(c)

the business is not—

(i)

the provider of a care home service, in so far as it provides food to residents of the accommodation provided as part of that service, and charges for that food as part of the cost of the accommodation,

(ii)

a school,

(iii)

a restaurant.

(2)

For the purposes of regulation 6 (restriction on the price promotion of certain drinks) a business is a qualifying business if—

(a)

a person offers, in the course of carrying on the business, any drink to which regulation 6 applies for sale (in store) to consumers,

(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

(c)

the business is not—

(i)

(ii)

a school.

(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—

(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

(b)

paragraphs (5) and (6) apply to the franchise business.

(5)

This paragraph applies if the following are agreed by the franchisor—

(a)

the food provided in the franchise business,

(b)

the internal or external appearance of the premises where the franchise business is carried on, and

(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—

(a)

the employees of a business are the persons who are employed for the purposes of the business,

(b)

a “care home service” has the meaning given by paragraph 2 of schedule 12 of the Public Services Reform (Scotland) Act 2010^f1,

(c)

“contract of employment” means a contract of service, whether express or implied, and (if it is express) whether oral or in writing,

(d)

“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,

(e)

“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),

(f)

“school” has the meaning given by section 135 of the Education (Scotland) Act 1980^f2.

Annotations

Footnotes

f1: 2010 asp 8.
f2: 1980 c. 44. The definition of “school” was amended by section 2(2) of the Registered Establishments (Scotland) Act 1987 (c. 4) and by section 60 and schedule 3 of the Standards in Scotland’s Schools Act 2000 (asp 6).