Northern Ireland deal:
“The Windsor Framework”
At the beginning of this month a new deal was unveiled between UK Prime minister Rishi Sunak and the EU that will replace the Northern Ireland protocol.
- Pivotal to the arrangement is the idea of green lanes and red lanes. British goods staying in NI will use the green lane at ports, meaning they face minimal paperwork.
- Goods travelling into Ireland will use the red lane, meaning they face customs processes and other checks at Northern Ireland ports.
- A key part of the deal is an emergency “Stormont brake” on changes to EU goods rules that can be pulled by the NI Assembly.
The DUP has repeatedly said it will take time to consider the substance of the deal before deciding whether to back it.
If successful, it could pave the way to restore devolved government in Northern Ireland, and should go down well with the US, with which negotiations on a new trade deal have stalled, as well as improving the UK's relations with the EU, which could be positive for trade and cooperation.
Under the new plan:
- Trade into Northern Ireland will be divided into a green lane (where Northern Ireland is a final destination), which will be subject to minimal checks, and a red lane (where goods may make their way into the Republic of Ireland).
- The European Court of Justice will retain a role in enforcing EU law within Northern Ireland, regarding EU Single Market issues. But PM Sunak said that the only EU law within Northern Ireland would be the minimum required to prevent a hard border on the island of Ireland and that EU law only applies with "consent".
- The UK will set VAT rates, taxation and state aid policy in Northern Ireland
- The devolved assembly at Stormont will have an "emergency brake" on any new EU rules relating to the EU's single market. If the brake were to be pulled, the UK government would have a veto.
- Pets will be able to travel between Great Britain and Northern Ireland without pet passports and microchips.
Regarding the key issue of whether the DUP will support the Windsor Framework, Mr Sunak said they would need time to consider. He also said that once everyone had digested fully the deal, there would be a vote in the UK parliament.
HFSS Food and Advertising – Consultations
The UK Government has formulated final policy for introducing secondary legislation with regulations restricting advertising for specified HFSS products on TV and online. The consultation on this will end 31 March 2023.Introducing further advertising restrictions on TV and online for products high in fat, salt or sugar: consultation on secondary legislation - GOV.UK (www.gov.uk)
The Health and Care Act 2022 inserted new sections into the Act which:
- prohibit television programme services provided between 5.30am and 9.00pm from including advertisements for identifiable HFSS products (section 321A)
- prohibit all on-demand programme services (ODPS) regulated by Ofcom, provided between 5.30am and 9.00pm, from including advertisements for identifiable HFSS products (section 368FA)
- prohibit paid-for advertising of identifiable HFSS products online (section 368Z14)
The Health and Care Act 2022 (HCA) received Royal Assent on 28 April 2022. See section (172) and Schedule (18) for HFSS advertising restrictions in the Health and Care Act. (HCA) Under the HCA, the new advertising restrictions were required to take effect from 1 January 2023. However, as announced in December 2022, the Government are delaying implementation of the policy, so that it comes into force on 1 October 2025.
Secondary legislation Introducing further advertising restrictions on TV and online for products high in fat, salt or sugar: secondary legislation - GOV.UK (www.gov.uk) is intended to be introduced to cover the following areas:
- defining the products in scope of the advertising restrictions
- defining food and drink small and medium-sized enterprises (SMEs) for the purposes of the SME exemptions
- defining services connected to regulated radio for the purposes of section 368Z14(3)(c) to ensure that the exemption for radio services – which are outside the scope of the prohibition – covers online services provided by commercial and community radio broadcasters
Products in Scope
Food products are in scope if they fall within the 13 product categories set out in legislation, including soft drinks with added sugar, savoury snacks, biscuits, breakfast cereals, ice cream, cakes, desserts and puddings, pizzas, sweetened yoghurts, ready meals and sandwiches. The food must then score a 4 or above for food – and 1 or above for drink – when applying the 2011 technical guidance to the 2004/2005 Nutrient Profile Model to be considered ‘less healthy’. Information on the nutrient profiling model is available on the Department of Health and Social Care's website here. The nutrient profiling model - GOV.UK (www.gov.uk)The nutrient profiling model - GOV.UK (www.gov.uk)
Further guidance is set to be issued which is expected to be in line with the existing guidance provided for the promotion and placement restrictions.
Business in Scope.
Exemptions exist for business to business marketing, adverts which are not intended to be accessed principally by people in the UK, and advertising by small and medium sized enterprises (SMEs).
‘Food or drink SME’, will be defined as businesses with 249 employees or fewer. This definition will also outline that a company’s number of employees internationally count towards their total number of employees and that franchises are treated as part of the franchisor business and not as a separate business.
A number of exemptions also apply for regulated broadcast radio and audio-only content online, such as podcasts and internet-only radio services, where services are not regulated. However, audio advertising that has a visual component is in scope of the restrictions.
The Ofcom consultation
Ofcom’s consultation focuses on amendments to the UK Code of Broadcast Advertising BCAP Code and Ofcom’s Broadcasting Code Published in February the consultation closes on 21 April 2023 Consultation: Regulation of advertising of less healthy food and drink (ofcom.org.uk)
The raft of ‘Obesity Strategy’ legislation was introduced by Boris Johnson and has a number of measures postponed as consumers struggle with a cost of living crisis and businesses already constrained by inflation and supply chain difficulties have been given extra time to grapple with understanding the products that are within scope; ie 'bogof' promotional deals.
Whilst obesity and the NHS remains high on the agenda, the popular consensus for further legislation on a beleaguered food sector may have diminished. However, as this is a restriction on advertising rather than measures which may serve to increase costs to the consumer, such as further costs associated with calorie pricing on point of sale ie menus, it looks likely to come into force. It should however constantly be queried if additional restrictions are justified and if they will actually achieve the objectives they intend. Otherwise this is further red tape on business rather than actual measures for education and the NHS to help fight obesity.
The UK advertising sector is no less worthy of support than food and hospitality and we in the UK already live with extensive codes of practice and legislation on what and how can be claimed about food and drink.
Additionally, a question mark is raised on the subject of sponsorship and how this may also have follow on effects on a variety of sporting and other events. Alternative sponsors may need to be sought and both areas affected will need to assess their long term advertising strategy.
Scottish Consultation on Restrictions of Alcohol Advertising Closes
The Scottish consultation on restricting advertising of alcohol closed on 9 March Alcohol advertising and promotion - Scottish Government - Citizen Space (consult.gov.scot)
Meanwhile an open letter has been signed by nine organisations including the Advertising Association, the Incorporated Society of British Advertisers (ISBA) and the Institute of Practitioners in Advertising (IPA), following the closure of the Scottish Government’s consultation on restrictions on advertising of alcohol.
The regulation changes would include a ban on sponsorships for sport and live events, and distillery and brewery shops also barred from selling branded merchandise to visitors.
The industry leaders say the reforms would not address excessive alcohol consumption.
The letter states: “Whilst we understand the Government’s desire to reduce alcohol consumption harms in Scotland, there is no evidence that advertising bans will achieve that aim.”
The GMB Scotland Union representing workers in the alcohol industry in Scotland have joined stating “While the consultation is well-intentioned, an alcohol advertising ban will inevitably be detrimental to jobs across the sector and its supply chains. And in a cost-of-living crisis, workers in the real world shouldn’t pay the price for the unintended consequences of decisions taken within the Holyrood bubble…Let’s be clear, the sector is a fundamental pillar of our economy and the jewel in the crown of our highly valuable food and drink sector.”
Upheld in part Social media (paid ad) 08 March 2023 WaterWipes UC - ASA | CAP
A paid-for Facebook post for a wet wipe company made an unverifiable claim to have the “world’s purest wipes”.
The ASA challenged whether the claim “world’s purest wipes” was verifiable.
WaterWipes said the ad contained no outward comparison to named competitor brands and that the ad’s statement that the product contained 99.9% water was the principal verification information for the claim “world’s purest wipes”. They believed that as the ad did not name any competitors it did not constitute a direct comparison with identifiable competitors. They added that the Facebook post featured a link labelled “LEARN MORE”, through which consumers could find out more about the product.
The ASA considered that the claim “world’s purest wipes” would be understood as a comparison with identifiable competitors.
The CAP Code required comparisons with identifiable competitors to be verifiable. That meant that an ad which featured a comparison with an identifiable competitor, including one that could be identified by implication, needed to include, or direct a consumer to, sufficient information to allow them to understand the comparison, and be able to check the claim was accurate, or ask someone suitably qualified to do so.
The ad did not provide any information to ensure consumers or competitors were able to check the comparative claim, nor did it include an adequate signpost to information that formed the basis of the comparison. For that reason, the ASA did not consider the ad allowed consumers or competitors to verify the comparison and therefore concluded that the claim breached the Code.
Deutsche Lufthansa AG t/a Lufthansa
Upheld Poster 01 March 2023 Deutsche Lufthansa AG - ASA | CAP
A poster for Lufthansa made misleading claims about the airline’s environmental impact.
A poster for Lufthansa, seen in June 2022, featured an image of the front of a plane in flight. The underside of the plane was represented by an image of the earth from space. The ad included text which stated, “LUFTHANSA GROUP. CONNECTING THE WORLD. PROTECTING ITS FUTURE. #MakeChangeFly”.
The ASA understood that air travel produced high levels of both CO2 and non-CO2 emissions, which were making a substantial contribution to climate change. It was noted the initiatives and targets Lufthansa said they were committed to delivering in pursuit of their stated goal, but many of these initiatives were targeted to deliver results only years or decades into the future. The ASA also understood that there were currently no environmental initiatives or commercially viable technologies in the aviation industry which would substantiate the absolute green claim “PROTECTING ITS FUTURE”, as they considered consumers would interpret it. Held because the basis of the claim had not been made clear and it had not been adequately substantiated, the ad breached the Code.
FSA Board Meeting
The next FSA board meeting will be on 22nd March.
The agenda for this meeting includes:
- Strategic Risk Management
- The Genetic Technology (Precision Breeding) Bill
- Achieving Business Compliance Programme
- Three Year Corporate Plan
- Risk Analysis Process and Regulated Products Service Update
- Annual Science Council Report
The associated agenda and papers have been published. FSA Board meeting papers published for March 2023 | Food Standards Agency
Genetic Technology (Precision Breeding) Bill
FSA set out their position in an early published paper on the UK Government’s Genetic Technology (Precision Breeding) Bill (“the Bill”) The Genetic Technology (Precision Breeding) Bill: Consumer Information, Traceability and Developing Other Elements of the New Regulatory Framework for Precision-Bred Food and Animal Feed | Food Standards Agency
The Bill is at a late stage of its passage through Parliament. Alongside this Bill the FSA will be working to develop a new regulatory framework for precision-bred organisms (PBOs) for use as food and animal feed in England (“PB food/feed”)
The UK Government’s position is that there should be no requirement to distinguish PB food in labelling or other information for consumers and, consequently, there is no power for ministers to implement this in the Bill. There are, however, existing powers under the Food Safety Act 1990 to make secondary legislation to regulate the labelling and description of food which could potentially be used to lay down labelling/information requirements for PB food.
PBOs for food use must be determined as safe by the FSA and authorised before they can go on sale in England. This means that labelling will not be required for the purposes of safety for PB food solely because it is PB. However, just as with any other food, PB food may have specific safety labelling for particular consumer groups where this is necessary, for example, information on allergens for consumers with food hypersensitivities.
The FSA recommends that they should continue to keep the provision of consumer information on PB food/feed under review.
FSA’s central objective for the traceability of PB food/feed is to ensure that it is no different to its conventional counterparts in terms of the ability to trace and remove it from the market in the event of an incident.
At this stage the FSA do not envisage that additional traceability requirements beyond those in General Food Law will be necessary.
However, further work will be undertaken as they develop policy to understand the trade and enforcement aspects, including how the Windsor Framework and UKIMA will operate in practical terms. This is particularly of interest as this is likely to be one of the main early areas of divergence with the EU.
The Bill provides a discretionary power for ministers to make regulations to require the FSA to establish and maintain a public register of information relating to PBOs authorised for use as food/feed in England. The FSA will continue developing the public register which will contain information for all about PB organisms that have been authorised for use in food and feed in England.