Food & Drink Cambridge Dinner
The 24th annual Cambridge Food and Drink sector dinner was held at Queens College on Wednesday 4 October with attendees from all stages of the ‘farm to fork’ sector. There were some thought provoking insights from Ash Amirahmadi, CEO of Sofina Foods Europe and formerly of ARLA, on subjects as diverse as food security, innovation, the price of food, the value of data (liquid gold!) and, arguably most importantly, educating our politicians to properly understand the challenges - immediate and future as well as the value of food and food security.
EFRA Committee reports on food security
On 18 July 2023, the Environment, Food and Rural Affairs Committee (EFRA) published a report on food security. Food Security - Environment, Food and Rural Affairs Committee (parliament.uk) It concludes that the government should report on food security annually.
The EFRA stated that the government's UK Food Security Report (UKFSR), a statutory requirement under section 19 of the Agriculture Act 2020, published in December 2021, was already out of date. With the government not required (by statute) to publish the next edition until December 2024, EFRA concluded that a UKFSR should be published annually and to accompany an annual food security summit chaired by the Prime Minister.
In relation to food security EFRA concluded the Government Food Strategy (GFS) made only one commitment to food security: to maintain “broadly the same level in future” the UK’s current rate of self-sufficiency of 75% of commodities we can produce. Food security, though, was stated to be more than just self-sufficiency: the UK is reliant on food imports. It was recommended the Government should, in conjunction with the food supply chain and others such as academics, develop a suite of food security indicators covering both inputs and outputs and set targets for them, which should in turn influence food security policy.
EFRA made observations and recommendations to safeguard food security including:
• Fertiliser - Nitrogen fertiliser plays a critical role in UK food security, and the production of ammonia used in it, creates large amounts of carbon dioxide gas as a by-product which is vital for the food supply chain. There is only one plant remaining in the UK which is currently using imported ammonia. The government should set out how it will ensure its continued production in the UK.
• The National Food Strategy independent review (NFSIR) had set out food security recommendations and EFRA felt the government response in the Government Food Strategy (GFS) did not examine these enough.
Single-use plastic ban now in force 1 October 2023
The new Environmental Protection (Plastic Plates etc. and Polystyrene Containers etc.) (England) Regulations 2023 came into force on 1 October 2023, which means that businesses can no longer sell certain plastic items including single-use plastic cutlery, balloon sticks and polystyrene cups and food containers.
The use of single-use plastic plates, trays and bowls will be restricted however the wide exemption for packaging and product that is filled at point of sale means in practice this will be restricted to the products themselves being sold empty to consumers.
Please see: Single Use Plastics Ban - What is covered? - Mills & Reeve (mills-reeve.com)
Digital Markets, Competition and Consumers Bill
The Digital Markets, Competition and Consumers Bill Digital Markets, Competition and Consumers Bill - Parliamentary Bills - UK Parliament will make major changes to the way consumer protection law is enforced. The Bill will provide for the regulation of competition in digital markets; to amend the Competition Act 1998 and the Enterprise Act 2002 and to make other provision about competition law; also to make further provision relating to the protection of consumer rights.
The reforms will impact almost any business selling to consumers, including those in the food and drink sector. While the upfront regulation of digital markets has been the main headline, some fundamental changes are afoot in the consumer protection sphere, combined with enhanced powers to investigate companies that breach competition law.
The Bill is expected to come into force in the second half of 2024.
Consumer Protection Aspects
Under the current regime, the CMA can only enforce consumer protection indirectly – by threatening or making a Court application, the new rules will allow the CMA to enforce consumer laws directly. Specifically, at the end of investigations, the CMA will be able to issue infringement notices, impose sanctions and negotiate consumer compensation. Sanctions for consumer law breaches will be subject to a maximum fine of up to 10% of global annual turnover for companies and up to £300,000 for individuals.
Additionally, the existing list of unfair commercial practices will be consolidated and new offences and duties in relation to subscription contracts, savings schemes and fake reviews added. The Secretary of State will also have the power to add more practices to the list in future, to ensure the law keeps up with new market developments. This will therefore directly apply the Consumer Rights Act 2015, the Consumer Credit Act 1974, and the unfair commercial practices currently contained in the Consumer Protection from Unfair Trading Regulations 2008.
What can food companies do now?
It is recommended that a review is taken of the consumer protection rules relevant to your particular sector and any consumer contracts and applicable T&Cs – in particular, any subscription provisions and ADR mechanisms. Additionally, consider your risk management, mitigation, consumer facing training, processes etc.
Electronic bills of Lading
The Electronic Trade Documents Act 2023 ETDA, Electronic Trade Documents Act 2023 (legislation.gov.uk) enacted on 20 July 2023, was operational under English Law as of 20 September 2023. The legislation gives digital versions of certain key trade documents – like bills of lading and promissory notes – equal legal standing to their paper equivalents in English and Welsh law.
The Act does not outline specific requirements for an electronic trade document system, which allows for the development of industry standards for such systems, such as the Digital Container Shipping Association (DCSA)’s e-bill of lading, the ICC’s Digital Standards Initiative (DSI), and the Future International Trade (“FIT”) Alliance.
The Act will be transformative to trade and trade finance processes, but in the short-term users of trade documents and finance providers will need to deploy “reliable systems”, get comfortable with the risks associated with them and prepare for governments in other key jurisdictions to adopt similar legislation.
Nutrition and health claims on food: proposed legislative reforms
The Government is proposing changes in relation to nutrition labelling, composition and standards (NLCS) retained EU law.
The consultation sets out 2 proposals:
- reforming nutrition and health claims enforcement in England by introducing an improvement notices regime
- removing redundant tertiary legislation that approved or rejected health claims
Nutrition and health claims on food: proposed legislative reforms - GOV.UK (www.gov.uk)
The consultation is open until 11:59pm on Tuesday 31 October 2023.
This was discussed at the Food Law Group last month, a group of specialist barristers, solicitors and regulatory experts meet to discuss topics of interest in the food sector. There was a split into those who saw this step as an additional lever of enforcement without the judicial checks that could result in its’ own penalty for non-compliance; and those who believed that this would make any prosecution less likely and therefore should be welcomed. Certainly there has been a move away in the ‘hierachy of enforcement’ from prosecutions where there is not a food safety component.
The power of the state and Judicial Review for HFSS legislation - Kellogg’s v SHCC
Kellogg v SSHSC judgment (judiciary.uk)
In R (Kellogg Marketing and Sales Company (UK) Limited) v Department of Health and Social Care, the Kellogg Company (Kellogg’s) sought to challenge the lawfulness of the Food (Promotions and Placement) (England) Regulations 2021. These Regulations restrict promotions of specified ‘less healthy’ foods as determined in guidelines issued by government in 2011, based upon the Nutrition Profiling Model developed by the Food Standards Agency in 2004-5 The nutrient profiling model - GOV.UK (www.gov.uk). Most of Kellogg’s breakfast cereals are classified as ‘less healthy’ on this basis.
Kellogg brought judicial review proceedings in relation to the 2021 Regulations
There were four grounds of challenge raised by Kellogg’s, all of which were dismissed by Mr Justice Linden in the High Court.
(Comment in italics the personal view of the author.)
The first two of these were based in legislation.
- Ultra Vires
1.a Expanding powers
Kellogg’s argued the 2021 Regulations went beyond the powers granted by the governing legislation, the Food Safety Act 1990 (FSA), and that accordingly this statute could not be used as the basis on which to regulate promotions of products containing high levels of fat, sugar or salt (HFSS). Mr Justice Linden dismissed these.
Mr Justice Linden found that , finding that s 10 of the FSA was not “overridden” by the subordinate legislation, i.e. the 2021 Regulations, because s 10 was not altered in any way by the 2021 Regulations. It was held the question of further applications of improvement notices under the FSA was simply left open by Parliament, therefore the subsequent 2021 Regulations simply enlarged the power to issue improvement notices in a way that was consistent with the FSA.
- This is concerning whereby English law is historically not prescriptive and in this judgement silence on a matter was held to simply mean future powers could be considered as being ‘left open’.
1.b Incorporating standards & guidance into legislation by the back door?
Additionally, Kellogg’s argued all rules for determining whether a certain food should be classified as HFSS must be contained in the statutory instrument itself. In this case the NPM were separate guidance.
It was held by Linden Parliament had clearly contemplated that provision for regulating a given activity in relation to food could be made by regulations that referred to or incorporated external benchmarks, formulae for assessment or other standards, i.e. as contained in the NPTG.
- In this case, a guidance document that falls outside of the rigours of legislation has in effect been incorporated within it. In this area where there are such difficulties in categorising an individual food outside of the consumer and their overall diet to the extent that the EU has failed to produce such a standard has been set within the mainstay of regulation such that its sales and marketable goodwill would be affected.
The basis of the next two points concerned more ‘commercial’ concerns.
2.a How the food is actually consumed
It was argued that, under the NPM, if the consumption of milk with Kellogg cereal were considered instead of just the cereal on its own, fewer Kellogg products would be classified as HFSS because the nutrient values of the added milk would contribute to the scoring. Kellogg argued that an approach which measures the relative levels of fat, sugar or salt in the product itself, rather than the health impact of the product as typically consumed, was disproportionate and irrational.
Kellogg said that for products that must be mixed or cooked with liquid before being consumed (e.g., custard powder, cocoa powder, dried soup and dried pasta), the Technical Guidance specifies that the calculation of the nutrient profile is to be based on 100g “of the product as reconstituted according to the manufacturer’s instructions”. It argued that breakfast cereals were a similar product, and a similar approach should therefore be taken.
However, the High Court observed that the manufacturer had had numerous opportunities to raise this issue, notably during the initial consultation period on the Regulations in 2019, but that it had failed to do so. Thus the government could not be held to have acted unlawfully by disregarding the point when making the Regulations.
- This would therefore mean that it is up to food companies themselves to point out the disproportionate and irrational early enough in consultation periods and to not do so would constitute some sort of tacit acceptance or waiver.
Finally, Kellogg’s argued the Regulations had a disproportionate impact upon the manufacturer’s rights to peaceful enjoyment of possessions and/or freedom of expression under Protocol 1 Article 1 and Article 10 respectively of the European Convention on Human Rights.
The court found sufficient public health considerations in favour of the measures. The court held that these served to justify any potential infringements of rights.
Linden J said that the question was whether the Secretary of State could “justify” the relevant infringements. There was no issue that the aim of the impugned measure was legitimate, i.e. “public safety…. the protection of health” (Article 10(2)) and “the public interest” (Article 1 of Protocol 1). The dispute was as to proportionality.
Linden J said that this was a case in which a significant degree of deference should be accorded to the decision maker(s). Even if that were wrong, in Linden J’s view the relevant aspects of the Secretary of State’s approach under the 2021 Regulations were proportionate and rational. ie “…to reduce overconsumption of HFSS products that can contribute to children being overweight or living with obesity….to shift the balance of promotions towards healthier options and maximise the availability of healthier products available on promotion…”.
It was held, looking at Kellogg’s arguments and evidence more broadly, there was nothing to cause concern that there might be unfairness to Kellogg or arbitrariness in the effects of the NPM on its business. On the contrary, the public health case for the approach under the 2021 Regulations was compelling, Linden J said, and he was satisfied that it was both proportionate and rational.
- It would seem here that a worthy enough goal is sufficient in itself to meet any encroachment on peaceful enjoyment of possessions and/or freedom of expression whether or not these objectives may be reasonably met.
Cheese advertising on Transport for London
Transport for London bans 'unhealthy' artisan cheese advert - BBC News
An advert featuring an artisan cheese was been banned on London's transport network as a food high in fat, salt or sugar HFSS last month. The posters were designed for Tube platforms and buses by business premises provider Workspace.
In February 2019, the transport network, Transport for London (TfL), banned the advertising on its spaces of foods that, according to the Food Standards Agency’s (FSA) nutrient profiling model, fall within the category of foods high in fat, sugar and salt (HFSS). This included underground tubes, bus stops, and railway stations. TfL Ad Policy: Approval Guidance for Food and Non-Alcoholic Drink Advertising
Online cheesemonger Cheesegeek called the policy "extremely simplistic".
Internal Sabotage – food factory worker jailed for 3 years
A robust crisis management policy should consider potential risks to the food business and this should also include internal malicious tampering.
This month a factory worker, Garry Jones, who put plastic bags, rubber gloves and ring pulls in food, hummus and salad dressings, destined for a range of restaurants - including Nandos - has been jailed for 3 years.
It was found that Mr Jones "knowingly and maliciously" contaminated the products while working at a Worcestershire food manufacturer, Harvey & Brockless.
Manufacturer Harvey & Brockless said no products that were tampered with in October 2022 reached "end" customers.
From 28 October 2022, the company was made aware dozens of its products which are supplied to restaurants across the country had been contaminated with the gloves, plastic bags and metal ring pulls. An internal investigation revealed other boxes had also been tampered with, leading to the firm concluding an employee was responsible and police were alerted.
The use of a metal detector on products before they left the kitchen area meant any contamination could not have taken place during production and must have occurred in the storage area of the factory, the CPS said.
CCTV cameras inside the factory went to show Mr Jones deliberately tampering with tubs of hummus and salad dressings when he was alone.
Harvey & Brockless has said the vast majority of the products involved did not reach their destination, adding "any items that did were quickly returned before reaching the end consumer". "This swift action meant all end consumers were fully protected from any contaminated products," it added.
Following the incident, the manufacturer said it had invested in extra CCTV cameras to ensure all areas were "fully covered".
Mehree Kamranfar, senior crown prosecutor for CPS West Midlands, said the case was "extremely disturbing."
"The cross-contamination caused alarm both within the company and externally, as Jones's utter disregard, particularly in mixing fish sauce with raw ingredients, could have threatened serious harm to those with allergies.
"In addition, sabotaging the food products supplied by Harvey & Brockless not only cost the firm thousands of pounds, it also threatened to destroy the company's reputation."
Crisis Management –
All businesses, no matter what size are likely to experience a crisis situation; it is a matter of ‘when’ rather than ‘if’.