Food & Agri Update – Friday 1 September

Food Inflation drops

Food inflation fell to 11.5% this month, down from 13.4% in July, according to the latest data from the British Retail Consortium, mainly driven by fresh food.  However, the current rate of price rises is still faster than the growth of wages

PFAS or 'Forever Chemicals' found in Drinking Straws

Researchers in the US have raised concerns over so called ‘forever chemicals’ PFAS, poly and perfluoroalkyl substances.  Due to their structure and unique chemical properties, PFAS are widely used as they provide a non-stick barrier to fat and water. The compounds are widely used in takeaway food packaging, microwavable bags, kitchen utensils, and cookware.

Human exposure to PFAS from the environment and through dietary sources has been highlighted in media in recent years, particularly in the US.

PFAS are classified as Persistent Organic Pollutants (POPs). They are also recognised as long range transboundary air pollutants. PFAS have been widely detected in the environment (due to their use as firefighting foams and escape from manufacture sites) and now in the food chain and in human blood. As PFAS bioaccumulate through the food chain it is generally foods of animal origin such as fish and meat that are found to contain the highest levels of these compounds. However, the soil that the crops are grown in, the water supplies used on the crops and potential nearby industries/production plants using PFAS products can influence PFAS contamination levels found in crops.

Belgium scientists have recently reviewed PFAS in straws, particularly in straws made from plant based materials such as paper.

Poly- and perfluoroalkyl substances (PFAS) were found in 18 out of 20 brands of paper drinking straws, according to researchers from the University of Antwerp, in results published on 25 August.

‘Many food contact materials (FCMs) and reusable plastics in the food industry contain poly- and perfluoroalkyl substances (PFAS), a group of synthetic pollutants that are known to be potentially harmful for wildlife, humans, and the environment. PFAS may migrate from FCMs to food consumed by humans. As a replacement for plastics, often paper and other plant-based materials are used in commercial settings. This also applies to drinking straws, where plant-based and other presumably eco-friendly straws are increasingly used to reduce plastic pollution. In order to make these materials water-repellent, PFAS are added during manufacturing but can also already be present early in the supply chain due to the use of contaminated raw materials.’  Full article: Assessment of poly- and perfluoroalkyl substances (PFAS) in commercially available drinking straws using targeted and suspect screening approaches (

PFAS were found to be present in almost all types of straws, except for those made of stainless steel. PFAS were more frequently detected in plant-based materials, such as paper and bamboo.

Plant-based straws have become popular alternatives to the single-use plastic products that have been banned in a number of countries in recent years, including the UK.

This may indicate there are other food safety and environmental concerns that may need to be taken into account in the promotion of reusable alternatives.

Shinkflation and Misrepresentation

A proposed US class action has accused Burger King of false advertising stating pictures of its best-selling fast-food item make it look bigger than it actually is.  The claim references adverts that show ingredients that “overflow over the bun,” making it appear 35% larger and containing more than double the meat actually served.

A US judge last month rejected Burger King’s attempt to have the case thrown out of court, paving the way for the arguments to be heard in front of a jury.

Similar US law suits concern advertising of McDonald’s and Taco Bell. Plaintiffs argue that the false advertising is so blatant that it amounts to breach of contract.


In the absence of punitive damages it is unlikely that class actions of the kind seen in the US will spread to the UK.  Although individual claims where products do not meet specifications ie B2B would be under commercial contract law; ordinarily the price on a consumer basis would make any individual contract claim on food products de minimis.

It is far more likely that misrepresentation of food products in advertising ie whether adverts or commercial documents ‘misrepresent’ their food product to consumers particularly as to their nature, substance or quality, would result in complaints to the UK Advertising Standards Authority (ASA.) Around 70% of the complaints received by the ASA are about misleading advertising.

All marketing and advertising must be an accurate description of the product or service.

  • Marketing communications must not materially mislead or be likely to do so.
  • Obvious exaggerations ("puffery") and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead.  Difficulty can arise, however, when a claim which a marketer intended as puffery is actually one which the ASA considers is likely to be understood as objective.
  • Marketing communications must not mislead the consumer by omitting material information.
  • Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims.
  • Substantiation - Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. 

In some cases enforcement action by trading standards may be taken under the following legislation:

Food Safety Act 1990

  • Section 15: “falsely or misleadingly described or presented” -
  • any person who labels or advertises food in a way that falsely describes it, or labels, advertises or presents food in a way which misleads as to its nature, substance or quality, is guilty of an offence. The offence can occur when statements are untrue or pictures of food are presented in a misleading way. The offence also covers material that is correct but given such emphasis that the purchaser is led to the wrong impression.
  • the Food Safety Act offence would apply to both consumers and other businesses.

Regulation (EC) 178/2002

Article 16: Presentation ‘the labelling, advertising and presentation of food including their shape, appearance or packaging or packaging materials used, the manner in which they are arranged and the setting in which they are displayed and the information which is made available about them through whatever medium shall not mislead consumers.

The Consumer Protection from Unfair Trading Regulations 2008 also creates offences for misleading actions or omissions and other unfair or aggressive commercial practices.

Summary – Whilst ads would wish to portray the food products in the best possible light they must not misrepresent the quantity or ingredients of those products without being considered misleading.

Ultra Processed Foods and Use of Statistics

The Scientific Advisory Committee on Nutrition (SACN) considered ultra-processed foods (UPF) at its horizon scanning meeting on 17 June 2022 (PDF, 173KB).

Members noted that it would be timely to consider this issue since there was increasing discussion and debate regarding the implications of food processing on health. In light of recent newspaper reports highlighting specific attributions it is useful to see the SACN’s consideration of this topic SACN statement on processed foods and health - summary report - GOV.UK (

‘Studies are almost exclusively observational and confounding factors or key variables such as energy intake, body mass index, smoking and socioeconomic status may not be adequately accounted for.’

‘Consumption of (ultra-) processed foods may be an indicator of other unhealthy dietary patterns and lifestyle behaviours. Diets high in (ultra-) processed foods are often energy dense, high in saturated fat, salt or free sugars, high in processed meat, and/or low in fruit and vegetables and fibre.’

‘It is unclear to what extent observed associations between (ultra-) processed foods and adverse health outcomes are explained by established nutritional relationships between nutritional factors and health outcomes on which SACN has undertaken robust risk assessments.’


As with most health outcomes connected with food this was likely to be multi-factoral and that more detailed research was required.

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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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