The term "ultra processed food" (UPF) is a relatively new one, but has come to increasing prominence in recent years. The concept of UPFs has become a matter of intensive public discussion and scientific debate. We assess the current state of play for UPFs in the food sector, and the six business critical risks that all food businesses should consider.
The House of Lords food, dietary and obesity committee report of 15 October 2024 Recipe for health: a plan to fix our broken food system looked at the introduction of mandatory health targets for food manufacturers to reduce levels of fat, salt, and sugar in their products.
Building on the soft drinks industry levy (SDIL), the committee also recommended expanding reformulation programmes to cover a wider range of food products, encouraging manufacturers to produce healthier options. The report further suggested the implementation of additional health taxes on foods high in fat, salt and sugar, similar to the SDIL, to further discourage the consumption of unhealthy foods.
In particular, the food industry was stated to bear major responsibility for the obesity public health emergency and cited the role of ‘ultra-processed foods’ in relation to poor diet and obesity.
The ‘NOVA’ definition of UPFs
The committee examined the concept of UPFs (based on the NOVA classification) as a useful tool for describing the way in which the food system incentivises the production and marketing of cheaply produced, highly palatable, energy dense and nutritionally poor foods, and how this could drive unhealthy diets and obesity.
There remains no specific definition of what might constitute a UPF and it can range from your daily loaf of bread to the ready meal selection in the local supermarket. It's widely considered that the NOVA classification of UPFs lacks sufficient precision to be suitable for the characterisation or regulation of individual foods. NOVA (a name, not an acronym), is a food classification system divided into four groups, based on the level of processing, with the 4th group being named UPFs.
Characteristics of UPFs
- Made from substances extracted from foods or derived from food constituents
- Contain many additives, including those that enhance sensory qualities
- Highly convenient and attractive to consumers
- Nutritionally unbalanced and liable to be over-consumed
There, therefore, remains debate over the extent to which NOVA categories should be used in policymaking and exactly what their basis in science is. Industry has warned against any decisions that are not science-based and formulated with clear achievable health objectives as well as the correlating unintended consequences of undermining food security, affecting supply and/or raising prices.
The Government responded to the House of Lords report at the end of January 2025. They supported the majority of conclusions made and committed to developing a new National Food Strategy in 2025 that will focus on four key areas; food security, health, environment, and economy. On UPFs the response paper confirmed the Scientific Advisory Committee on Nutrition (SACN) will retain an active watching brief on the topic of processed foods and health and would reconsider any new, high quality evidence in November 2025. Also relevant to processed foods, SACN would consider the World Health Organization guideline on non-sugar sweeteners, with the aim of publishing a position statement early in 2025. Further, the National Institute for Health and Care Research (NIHR) will be investing in a range of research on UPFs. This includes commissioning new research on the health and health inequality impacts of interventions that affect UPF consumption, and research on the cost implications of reducing these foods in the UK diet.
Key risks
The main question for debate is who should bear responsibility - the state, the food industry, or indeed, the individual? If your food company may be deemed to produce UPFs, where are the key risks to the business and what steps might be taken now to mitigate them?
Labour has historically advocated for a more interventionist approach, particularly on health issues. With the squeeze on funds it's also likely that prevention may be the order of the day for the NHS, and in particular a focus with this on diet. This will likely see increase focus on HFSS foods, ultra processed foods and alcohol.
Therefore, critical risks will concern the resurrection and extension of Henry Dimbleby’s proposals in the 2021 National Food Strategy for England, with a new National Food Strategy possibly concerning further taxes on UPFs, a sugar and salt reformulation tax and mandatory reporting programme. The focus on the SDIL and incoming restrictions on HFSS advertising and marketing certainly already shows regulatory ‘creep’. The Government response to the House of Lords report stated they'll be looking at incentives for reformulation and considering the balance of mandatory and voluntary measures that might be needed to make further change as well as keeping taxes ‘under review’. An audit of products should, therefore, be undertaken to highlight those that might be affected as well as those that may be deemed ‘at risk’ of an increase in restrictions and/or costs.
Whether there may be an extension to further mandatory information on food labels will also be an area to watch, and equally if food companies may seek to provide further information voluntarily to seek to protect themselves. This is particularly pertinent when the burgeoning litigation in the US is considered.
In an article on 7 February 2025, the Grocer reported “lawyers from firm Leigh Day have been exploring the potential grounds on which legal cases could be brought against companies from a variety of sectors, which include food manufacturers, alcohol suppliers and vape producers”. The two aspects of deceptive marketing and addiction are apparently being considered according to the article.
This is likely something that is being investigated by the UK claimant law firm, Leigh Day, due to two high-profile cases in the US.
- Morgan & Morgan has brought a lawsuit against companies including Mondelez, Kraft, Heinz, Coca-Cola, Nestlé and Kellanova, accusing them of intentionally developing addictive UPFs marketed at children. Read their blog here for further information.
- Hilliard Law is currently calling for potential plaintiffs whilst investigating the connection between ultra-processed foods and health problems, as well as the FDA’s alleged negligence in allowing an estimated 10,000 food additives to be used in foods in the US and potentially failing to regulate ultra-processed foods. Find out more here.
The previous US high profile case of Pelmans v McDonalds was successfully struck out in 2003 and equally looked at allegations of deceptive marketing and addiction.
The obesity claims in the US have many parallels with the US tobacco litigation. Many of the issues that arose in tobacco (allegations of fraudulent deception and corporate cover-up, issues as to knowledge / defence of volenti non fit injuria, issues of addiction etc) are also relevant in the US in relation to obesity claims. Although there has been tobacco litigation in the UK, it hasn't followed the same course as that in America, mainly due to limitation points, adjudication by a judge as opposed to a jury and so the examination of issues such as a precise causal connection and practical issues such as the “loser pays” indemnity costs rule.
The greatest risk in the food sector lies in what can and can't be said about the food and if a claim or statement is made that is false or misleading. Successful litigation has generally applied to this area more than any other, ie in 2002 McDonald’s issued an apology and paid $10 million (£7m) to vegetarian and religious groups in an out of court settlement in respect of their claim that fries were vegetarian when in the US the fries had been prepared firstly with beef tallow. Other US litigation concerns various claims in respect of the use of trans-fats in 2015 designed mainly to raise consumer awareness against the products which are the subject of the litigation.
In the UK there's the potential for criminal prosecution from trading standards and brand reputation damage via complaints upheld and rulings published by the ASA. It's recommended that product claims and descriptions are kept under regular review, particularly where any reformulation or product change is undertaken.
Manufacturers do have a general obligation to warn consumers in respect of product risks. However, in the absence of specific regulatory objections, this obligation exists only where the manufacturer can reasonably anticipate that health hazards will arise during the normal expected use of a product. Nevertheless, sensible defensive steps aimed at limiting possible exposure to litigation will also have positive impact on a company’s reputation for corporate and social responsibility and a possible impact on insurance premiums.
Legislation and in particular, Food Information Regulation 1169/2011, doesn't require mandatory warnings such "high in" sugars, salt or fats and hasn't defined any criteria for its use. Rather, in order to inform consumers on nutritional values, legislation on food information to consumers provides for mandatory nutrition declarations on pre-packed foods. In addition, in order to help consumers identifying the essential nutrition information when purchasing foods, legislation does allow for the repetition on front-of-pack of the most important elements of the nutrition declaration: the energy value alone or the energy value together with the amounts of fat, saturates, sugars and the sodium content expressed as salt. Legislation also acknowledges that additional forms of expression and presentation of the nutrition declaration may help consumers to better understand the nutrition declaration and allows for different forms to be developed by member states.
This is where the UK’s front of pack voluntary labelling has come in. Front-of-pack labelling in the UK is voluntary, but most of the major supermarkets and many food manufacturers provide this and use the government's recommended format - red, amber, green colour-coding and percentage reference intakes (RIs) - or as it may be better recognised - traffic light labelling. This is, therefore, already as close to a ‘warning’ label being applied to food that can be found. However, the government response to the House of Lords’ report also indicated that they would continue to review the evidence on front-of-pack nutrition labelling and consider with devolved governments whether further action is needed in the future.
In the out-of-home (OOH) sector, the Calorie Labelling (Out of Home Sector) (England) Regulations 2021 applied from 6 April 2022 and requires the provision of calorie information for all unpackaged food and non-alcoholic drinks on the menu for more than 30 days per year in respect of large businesses that sell food for immediate consumption, such as restaurants, cafes, pubs, and fast food outlets.
It may be that those companies and foods not included in this would consider their own voluntary provision of information to reduce risk depending on their risk profile. The government response to the House of Lords’ report indicated that the impact of OOH calorie labelling across the population was to be evaluated, and a post-implementation review within 5 years of implementation (ie April 2027) will be carried out, so there's the risk of further mandatory requirements in the future.
In the UK whilst there has been no high profile litigation, there has been increased consumer pressure and awareness. In particular the increase in activist groups targeting ‘big’ food companies such as Food Act!ve targeting Burger King ads and Bite Back targeting Just-Eat billboards.
The issue of obesity in the UK has become predominantly one of protecting brand reputation in seeking to limit any future legislation in this area through self-regulation. Many companies have already taken action to improve the nutritional content of food products because of consumer concerns, and many fast-food restaurants have now introduced a range of healthy dishes. The importance of brand reputation certainly shouldn't be underestimated.
Conclusion
It's advised that the food sector take this focus on UPFs seriously and consider their risk profile in all 6 areas.
There are risk mitigation actions that can be implemented to protect the brand as well as the bottom-line.
Mills & Reeve can provide a detailed overview and assessment of what measures may be most appropriate.
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