Food & Agri Weekly Update 25 November

Thanksgiving & Christmas – Turkey

In 2022, the UK has experienced its largest outbreak of bird flu, and experts have warned that infections could rise even higher over the winter of 2022–23. The outbreak has led to the death of 97 million birds globally (3.8 million in the UK), with significant consequences for agriculture and the environment. In response, the UK government has imposed mandatory housing for all poultry, amended its culling compensation scheme and relaxed the sale regulations of defrosted poultry.

FSA has today advised consumers that some chilled poultry products on sale will have been previously frozen and defrosted to maintain stock levels this Christmas 
FSA advises consumers that some chilled poultry products on sale will have been previously frozen and defrosted to maintain stock levels this Christmas  | Food Standards Agency 

There are no easy or quick answers to the avian flu crisis with both vaccination and genetic editing being discussed as potential means of resistance to the many strains of flu which will inevitably emerge in the future.

Cultured Meat

A meat product grown in a lab has been cleared for human consumption for the first time in the US.  The US safety agency, the Food and Drug Administration (FDA), has given approval for cell-cultured chicken, after doing a "careful evaluation".

It has been made in steel tanks by the firm Upside Foods, using cells harvested from live animals.

It will be able to be sold to consumers after an inspection by the US Department of Agriculture.

The FDA said it used data and information provided by the company to reach its decision, and had "no further questions at this time".

Will cultured meat come to the UK?

Currently the UK and EU Novel Foods regimes are closely aligned. The FSA has maintained the same application criteria and evaluation standards as the EC & European Food Safety Authority (EFSA) as per EU law Regulation 2017/2469 which has been retained after Brexit. This will mean a lengthy application process led by the EU that without further requests for information would take some 18 months.  Cultured meat would require a pre-market authorisation and approval by EFSA. However, it is unclear what type of nutritional and toxicological evidence EFSA would require to approve it.  Novel foods must be: 1. safe for human consumption, 2. labelled appropriately, so as not to mislead consumers and 3. must not differ from the food it intends to replace in such a way that its normal consumption would be nutritionally disadvantageous for consumers.

However, the UK government has indicated that a ‘new approach’ will be taken to novel foods.  ‘We will use the freedom Brexit gives us to review our novel foods regulatory framework. This will include working with the Food Standards Agency to update the process for approving novel foods, to create a transparent and effective system that is the best in the world for innovators, investors and consumers and encourages safe innovation in the sustainable protein sector.’ The Benefits of Brexit: How the UK is taking advantage of leaving the EU (

We have already seen some divergence between the UK and EU in the approach taken to gene editing with the Genetic Technology (Precision Breeding) Bill - Parliamentary Bills - UK Parliament that is currently in the House of Lords. In the same way that innovation is supported with an emphasis on environmental benefits there is a real chance for the UK to promote strategic advantage in existing and novel technologies, including in cultured meat.  

Additionally the Retained EU Law (Revocation and Reform) Bill Retained EU Law (Revocation and Reform) Bill - Parliamentary Bills - UK Parliament under which the vast majority of this retained law would fall away on 31 December 2023, unless specific measures are taken before then to preserve it, would similarly pave the way for a divergence from the EU strict processes of approval for cultured meat.

Challenges will be:

  • Practical: the time and resources taken to pass any updated legislation and the resources needed to scrutiny processes outside of EFSA and the EU.
  • Political: there may be consumer concerns that will not be allayed by the UK diverging from the EU approach. However there does appear to be a real political will to gain advantages from Brexit.
  • Legal: the application and intersection of regulations concerning technical definitions of what constitutes meat, country of origin, added ingredients and certain ‘formed’ meat products.

ASA Rulings

This week there were a couple that may be particularly relevant on the use of emotive language and how a comparative claim can be implied via the use of 'the'.

Sighthound Welfare UK Ltd t/a C.A.G.E.D  Not upheld  Digital outdoor  23 November 2022

A digital outdoor poster for a greyhound welfare pressure group that claimed greyhound racing kills and that every licensed track had a freezer to store the dead dogs was not misleading.

The ASA considered that an animal which needed to be put to sleep on humane grounds at the track was likely to have suffered on-track injuries. They also considered that 120 track-related deaths in the last year, which equated to more than two deaths per week, meant that was a common occurrence. The ASA acknowledged that the use of the term “killed” to refer to the way in which those greyhounds had died might be seen as distasteful and sensationalist by some and, in that sense, an emotive element to the situation. Nevertheless, the ASA considered Caged NW had shown there was a factual basis for the claim. The ASA considered the way they had chosen to make the claim was unlikely to be considered more widely as misrepresentative of the situation.

The ASA therefore concluded that the claim “Greyhound racing KILLS” had been substantiated and was not likely to mislead.

The ASA considered readers would interpret the claim in its factual sense to mean that any licensed greyhound race track would have a freezer to store the corpses of greyhounds that had died there. The ASA understood the wider context that the sudden death of any greyhound needed to be investigated and that evidence needed to be preserved to increase knowledge and improve veterinary care. The ASA acknowledged therefore that the way that was highlighted in the ad might again be seen as distasteful and sensationalist by some and, in that sense, added an emotive element to the situation. Nevertheless, the ASA again considered Caged NW had shown there was a factual basis for the claim. The ASA considered the way they had chosen to make the claim was unlikely to be considered more widely as misrepresentative of the situation.

The ASA therefore concluded that the claim “Every licensed track has a freezer to store the dead dogs” had been substantiated and was not likely to mislead.

Vodafone Ltd  Upheld  National press, Internet (website content)  23 November 2022  Vodafone Ltd - ASA | CAP

A website banner and a press ad for a Telecommunications service provider, misleadingly implied that they were the most reliable network or the only reliable network.

The ASA considered that consumers would understand the claims “The UK’s Reliable, Award-winning network” in ad (a) and “On the UK’s reliable award-winning network” in ad (b) to relate to the consistency and connectivity of Vodafone’s service and that Vodafone had also won awards for the service they provided.

The ASA acknowledged that the definite article used, “the”, referred to the “UK” and that the claim did not expressly include a qualifier that Vodafone was the UK’s “most” or “only” reliable network. However, because the ad referred to “the UK”, in conjunction with an adjective describing a feature of a telecoms’ service likely to be valuable to consumers (i.e., “reliable”) within the claim, the ASA nonetheless considered that the average consumer would interpret it as an implied comparative claim that Vodafone had been objectively found to provide the most consistent connectivity amongst all UK telecoms providers.

The ASA noted, for example, that the ads did not state that Vodafone was “a reliable UK network” or “a reliable network in the UK”, nor did the ads refer to “our reliable UK network”. The ASA considered claims phrased in that way would be unlikely to be considered as comparative, depending on the context in which they appeared.

Because the ASA considered that the claims “The UK’s Reliable, Award-winning network” and “On the UK’s reliable award-winning network” were comparative, they required objective substantiation for that comparative and superior claim. The ASA understood that Vodafone had intended to make a non-comparative claim and therefore did not hold such evidence.

The ASA therefore concluded that the claims “The UK’s Reliable, Award-winning network” and “On the UK’s reliable award-winning network” had not been substantiated and were likely to mislead.

Christmas – Advertising to children

The ASA has also provided a guide to marketers of the rules around advertising to children. Advertising to children this holiday season - ASA | CAP

Age-restricted products

The Codes define children as under-16s, young people as 16–17-year-olds. A huge number of children and young people use the internet to play games and visit social networking sites. But certain types of ads should not be displayed or delivered to these age groups.

Marketers must take care with ads for age-restricted products, which include:

  • alcoholic drinks, 
  • gambling products 
  • electronic cigarettes 
  • lotteries 
  • foods/soft drinks high in fat, salt or sugar (HFSS). 

In relation to the food products in particular an overview is given below on restrictions in advertising to children:


Those wishing to advertise alcohol  need to be aware that the content of their ads should not have a “particular appeal” to children. Whilst this depends very much on context, generally marketers should avoid using cartoon characters or words or images associated with youth culture.

The Code prohibits alcohol ads from being directed at under-18s through the selection of media, style of presentation, content or context in which they appear. Furthermore, marketing communications should not appear in a medium if 25% or more of the audience is under 18; so teen magazines or social media feeds aimed at children and the like are problematic mediums.

As well as targeting, advertisers need to ensure that their ads do not contain characters, pictures, wording or any other elements likely to be considered of particular appeal to children. It's important to note that alcohol ads must not appeal particularly to children regardless of whether the ad is appropriately targeted.


HFSS product ads are not permitted to appear in media:

•    Specifically for under-16s (for example, on a website aimed at children); or

•    Where under-16s make up a significant proportion (more than 25%) of the audience (for example, advertorial content with an influencer that might have broad appeal but also a significant child audience)

Marketers are expected to hold evidence to support their placement choices. 


Content is a contributing factor when the ASA is considering the likelihood of whether an audience for an ad was appropriate.  The more the content is likely to appeal to children, the more likely the ASA is to expect the advertiser to satisfy them that, depending on the medium, under 16s did not make up more than 25% of the audience or all reasonable steps were taken to target the ad responsibly. 

Marketers should also bear in mind that although an HFSS product advert might not have been targeted at children through its placement, the restrictions don’t end there.  If the content, despite placement, directly targets under-12s then the content rules are likely to apply which cover characters, celebrities and promotions.


Where the ad directly targets pre-school or primary school children (under-12s) through the content.  In those circumstances, the use of licenced characters and celebrities popular with children is prohibited (Rule 15.15).

This prohibition does not apply to non-HFSS product ads or characters which are owned by the brand itself (‘equity brand characters’).

Unless the content of the ad very clearly and unequivocally targets older children or adults there is a risk that the inclusion of a character could be seen as both directly targeting the content at under-12s and also prohibited as a result.


Promotions are also prohibited in HFSS product ads that directly target pre-school or primary school children (under-12s) through the content (Rule 15.14).

In ads that don’t directly target under-12s through the content, promotions may be included but should not encourage children to eat or drink a product only to take advantage of the promotional offer. 

Marketers must take care to ensure that any promotions meant for parents of younger children are clearly targeted at parents through their content

The ASA upheld a complaint about a joint promotion between Cadbury and the National Trust for Scotland, because the material - consisting of an online storybook and online activity pack, available to download from a section of the Cadbury website - had been directed at children.  Each of the ads featured Cadbury branding and identifiable Cadbury Easter-themed HFSS products and as such, the ASA considered that they were HFSS product ads.  While the website was considered to be directed at adults through its presentation and content, the ASA ruled that the downloadable content – the storybook and activity book – had been targeted at children (Mondelez UK Ltd t/a Cadbury, , 4 July 2018).

All marketing communications featuring a promotional offer must be prepared with a due sense of responsibility.

When actually advertising to children

Enhanced disclosure

The Code says that all ads should be “obviously identifiable” as ads, but particular care needs to be taken with ads that target under-12s. Children in this age group find it particularly hard to recognise ads and tell them apart from non-commercial content. Because of this, there is a requirement for ads to contain “enhanced disclosure” that they are ads.

Enhanced disclosures in ads for under-12s should be:

  • within or right next to the marketing communication;
  • of significant size and colour to stand out; and
  • readily apparent before (if possible) or immediately at the point of engagement.
  • They should also make clear who the advertiser is.

Several banner ads for toys broke the rules even though they contained an “ADVERTISEMENT” label, the font wasn’t large enough or of an adequately different colour to make them stand out (IMC Toys UK Ltd t/a Cry Babies, 15 June 2022IMC Toys UK Ltd t/a VIP Pets, 15 June 2022).

Peer pressure and credulity

Marketer’s shouldn’t make a direct appeal to children to buy products, or to persuade their parents or other adults to buy for them. Similarly, you shouldn’t encourage children to make a nuisance of themselves – sometimes known as “pester power”.

Advertisers can present products to children in a positive light, but they should avoid suggesting that a child might be unpopular, disloyal, or lacking in courage by not owning or buying the featured product.

Ads targeting children must not exploit their credulity, loyalty, vulnerability, or lack of experience. This means they should present the main characteristics of the offer/product, ensure you are clear about any commitments and include a clear statement if adult permission is necessary.

Do no harm

Finally, ads directed at children shouldn’t depict anything or contain any messages that could result in a child’s physical, mental, or moral harm.   One ad breached the rules by showing children eating food by hanging upside down, which the ASA considered was an unsafe practice with a high risk of choking if children copied it (Mondelez UK Ltd, 19 January 2022).

Ads also shouldn’t encourage children to take – or show them taking – risks or to copy unsafe or possibly socially undesirable practices.

Football World Cup and Advertising to Children

New guidance Up for the Cup – getting social media ads right for Qatar ‘22 - ASA | CAP

Whether a piece of content like an image of footballer or even just background graphics is likely to be banned by the ASA because it’s deemed of ‘strong’ appeal to under-18s can be sometimes be tricky. Luckily, CAP has produced an extensive piece of guidance accompanying the new rules to help advertisers get it right.

Football and appeal to under-18s

Football is overwhelmingly popular with all age groups. Children and young people play it, watch it, and want to be part of it in huge numbers. It’s the cup final in terms of strong appeal at the level of the activity itself. So, sports betting operators need to be very careful in the kinds of content used. And it doesn’t come any bigger than the World Cup.

The new controls on appeal don’t ban football-related content and references outright. There are proportionate exemptions that allow gambling advertising to reasonably illustrate betting products offered.

What can be included?

Football references are only acceptable, if they come under one of the exemptions set out in part 15 of the guidance. These are:

  • Text or audio references to the activity/product
  • Limited use of persons or characters who pass the test set out in the guidance
  • Generic depictions of the sport or game
  • Logos of teams/competitions that are subject of a product
  • Advertisers brand logos/identifiers

This means, you can play-on with simple text or text-only graphic posts that refer to teams and players. For example, during the action in live commentary or comment, or reporting on the event afterwards. The same also goes for audio references like embedded videos of talking heads discussing the days games. But, it’s a straight red for the inclusion of depictions of players, teams or managers. This is important when posting things like team sheets (no headshots) or vids recapping the action. And be very careful with memes and attempts at comedy.

There’s likely to be some scope to use football-related people, like pundits, but the guidance sets out the tests for the individual’s profile you must satisfy to make sure they aren’t likely to be of ‘strong’ appeal to under-18s (see guidance part 18).

Keep any other post content generic and you’ll be on for a comfortable three points. That means generic equipment like balls, goalposts, or coloured shirts. But you can also go with stylized depictions like blurred or long focus shots of stadia or computer-generated imagery. The other area of exemptions allows, simply, for the use of logos of your business (if they include football-related imagery, for instance) and that serve the same purpose as a simple text description (a team crest or tournament logo).

EU - European Commission’s credibility questioned

The EU Court of Justice has annulled the European Commission delegated regulation of 2019, which labeled whitening agent titanium dioxide (TiO2) as a carcinogenic substance by inhalation in certain powder forms.  TiO2 is used as a colorant in the food, nutrition and cosmetic industries.

The judges found a lapse of judgment of the EU executive body decision, deeming the Commission’s ruling a “manifest error in its assessment,” as the scientific study used as a pillar to justify the ban didn’t take into account “relevant factors.”  The EU judges state that the “requirement to base the classification of a carcinogenic substance on reliable and acceptable studies was not satisfied.”  The Committee for Risk Assessment’s scientific findings “were implausible.”

This decision from EU judges has only just happened and it is not yet clear how it impacts the EU ban. However, titanium dioxide trade bodies are interpreting this annulment as an end to the ban. Since the summer EU food manufacturers have been investigating a range of alternatives at cost of time and resources.

It raises questions about the European Commission’s credibility, especially as the UK, US and Canada food safety authorities all regarded TiO2 as safe for consumption earlier this year. In March, the UK’s FSA dismissed the EU research findings and declined to ban the artificial additive.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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