Food and Agri Update – Friday 10 February 2023

Government Shuffle and Priorities for Food Sector

The UK Government’s environmental and energy priorities were emphasised in the cabinet reshuffle and the creation of a new department for energy security and net-zero this week. 

The need for food security to be considered was underscored by the British Retail Consortium’s Andrew Opie who has stated that it’s vital retailers invest in suppliers to secure supply chains whilst they are adapting to challenges of climate change and new environmental requirements.  “They are long-term businesses with strong brand values and know that requires a partnership approach with suppliers including investment in research and development and innovation for the long term.”

Secretary of state for international trade Kemi Badenoch is to head the new Department for Business and Trade.  Badenoch signed an export and investment partnership with Italy, the first of its kind with a European Union member since Brexit, earlier this week.

Grocery Code Adjudicator Newsletter and Annual Survey

The newsletter published this week by the Groceries Code Adjudicator (GCA) Edition 32: News from the Adjudicator - GOV.UK ( provides a link to the GCA 2023 annual survey.  Direct and indirect suppliers, and other stakeholders, have until 26 February to anonymously update about how they have been treated by the 14 large retailers. In addition to anonymity all 14 retailers have further committed to “ensuring that suppliers do not face negative consequences as a result of raising issues with the business directly or with the CCO.” 

Food Market Watch

Food costs continue to rise for shoppers. Market analysis has found that supermarkets are continuing price increases on their budget food items as inflation starts to drop.  According to NationalWorld’s  price tracker of supermarket value range food, drink and cleaning products, there were 152 recorded price rises last month.  Also, own-brand value food, drink and household products have seen increases of up to 80% in January.  Supermarket price tracker Latest News | NationalWorld

The difference between when inflation hits cost bases and when the food manufacturers can land pricing may be responsible for this lag.  Hedging also has a role to play, as many companies are still benefiting from favourable energy price hedging covers at lower pre-war levels.

Alcohol in Scotland - Consultation on Restricting Advertising

The Scottish Government launched a consultation which considers restricting alcohol marketing including the banning of alcohol sponsorship for both sports and live events, distillery and brewery shops barred from selling branded merchandise to visitors, as well as drinks branding being removed from pub umbrellas and glassware and a ban on all outdoor advertising of alcohol, including on vehicles, and a ban on adverts in newspapers and magazines. Alcohol advertising and promotion - Scottish Government - Citizen Space (

In summary proposed restrictions include:

  • sports and event sponsorship;
  • outdoor and public spaces marketing;
  • in-store alcohol marketing;
  • "brand-sharing" and merchandise;
  • print, television and radio advertising; and
  • online marketing.

Certain areas such as TV and radio advertising may exceed the Scottish Parliament’s legislative competence as it will relate to matters reserved to the UK Parliament under the Scotland Act 1998 .  The consultation nevertheless states that there is value in gathering views on all the potential restrictions in pursuit of a "comprehensive approach to restriction".

The consultation runs until 9th March 2023.

A letter has published this week in response, signed by over 100 drinks companies from across Scotland stating the measures would result in a “blanket ban on alcohol advertising and sponsorship” in Scotland.  They argue that the “ban” on advertising and marketing will harm the sector with “no clear evidence to justify such a move”.

ASA Rulings

Laura Whitmore of former Love Island presenter fame has been in the news

 The Muff Liquor Company  Upheld in part  Social media (influencer or affiliate ad) 08 February 2023 The Muff Liquor Company - ASA | CAP

TikTok and Instagram post by Laura Whitmore for an Irish Gin and Vodka retailer were found to be not obviously identifiable as ads, were inappropriately targeted and implied that alcohol could enhance confidence or change moods. 

1. The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context. CAP guidance also stated that influencer marketing posts should be identifiable as ads without consumers needing prior knowledge of the influencer’s commercial relationships.

In previous rulings the requirement for #ad to establish this obvious identication has been underlined. This again reinforces the requirement. Hashtags referencing “#muffboss” and “#irishowned” and previous posts spelling out the relationship of Laura Whitmore as a shareholder of Muff Liquor were found to be insufficient.

2. The CAP Code required that marketing communications must be socially responsible and must not suggest that alcohol had therapeutic qualities, was capable of changing mood, or could enhance confidence.

Ms Whitmore appeared to dance more confidently and enthusiastically when drinking the two featured alcoholic beverages. The ASA acknowledged that the ads were presented in a light-hearted tone, nonetheless considered that consumers would interpret the ads to mean that drinking alcohol could precipitate a change in an individual’s behaviour and could enhance an individual’s confidence.

The ASA took the caption “If drinks were dance moves” into consideration. They noted that the muted reaction displayed by Ms Whitmore when consuming the non-alcoholic drinks heavily contrasted with her reaction to the alcoholic drinks. Within the context of the caption, the ASA considered the ads would likely be interpreted by viewers to mean that alcoholic beverages should be preferred, and that sobriety was boring.

The ASA further considered that the song lyrics used would be interpreted as a reference to drinking excessively. Consequently, they considered that the featured song lyrics reinforced that the ads encouraged irresponsible drinking.

3. Upheld in part - The CAP Code required that ads for alcoholic drinks or ads that featured or referred to alcoholic drinks must not be directed at people under 18 years of age through the selection of media or the context in which they appeared. It also stated that no medium should be used to advertise alcoholic drinks if more than 25% of its audience was under 18 years of age.

Ads were posted organically on Instagram and TikTok and the ASA did not receive any data regarding the demographics of individuals who had seen the ads.

Instagram – ASA looked at ages of audience figures for Ms Whitmore's followers. And the "Explore" feed of anyone who had interacted with similar posts or accounts. The ASA considered that it was unlikely that children would be overrepresented in the audience proportion of those who saw the ad in the "Explore" feed. Taking into account the mechanics of Instagram, and the available demographic data, we considered that Instagram ad had been appropriately targeted.

TikTok – the ASA took into account the mechanics of TikTok and how content was shared with its users. TikTok’s “For You Page” was algorithmically driven, and therefore users would see content from accounts that they didn’t follow but was likely to be of interest to them. As an ex presenter of Love Island BARB data showed Love Island was the fifth most watched programme by those aged 4 to 15 years old in the second quarter of 2022. Because of that, the ASA considered that a large proportion of individuals who were under-18 with TikTok accounts were likely to interact with content related to Love Island on the platform. Even if those individuals did not follow Ms Whitmore, the ASA considered it was likely that the algorithm would determine Ms Whitmore’s posts to be of interest to them, meaning they would appear in their “For You” page.

Additionally, the ASA noted that TikTok’s advertising policy prohibited ads for alcohol products. Because of that, the platform did not offer support or dedicated tools to advertisers in accommodating or targeting such ads.

The ASA were therefore not satisfied that Ms Whitmore had taken all appropriate steps to restrict or exclude under-18s from seeing the ad. insufficient care had been taken to ensure that ad was not directed at people under 18, and therefore breached the Code.

Tesco & Lidl Trademark Dispute

A change of scene in that Lidl claims their trademark branding has been infringed by Tesco who has counterclaimed.

German discounter Lidl uses a yellow circle in its main logo, and the Tesco uses one to highlight offers available to members of its Clubcard scheme.  The two similar logos, both include a yellow circle surrounded by a red ring.  One reads ‘Lidl’, while the other reads ‘Clubcard Prices’ in the middle.

Lidl’s position is the “protection available to Lidl’s core brand is at the heart of this claim.”  Tesco says that the wordless mark is invalid on the basis that it has never been used, it lacks distinctiveness, and each application for registered wordless marks was made in bad faith

Extensive Food Recall in New York

Over 400 products are being recalled in the US because they may be contaminated with Listeria monocytogenes.  Breakfast sandwiches, lunch sandwiches, fruit, desserts, salads, snacks, yogurt, wraps and more have been recalled in New York.  Listeria monocytogenes is an organism that can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems, according to the US FDA.  The recall was issued after the company’s environmental samples tested positive for Listeria monocytogenes

The recent Mills & Reeve webinar on crisis management in the food sector took place this week and a recording of the event is available here: Legal webinars | Access the latest webinars from our legal experts | Mills & Reeve (

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