February - Food News Roundup

1. Brexit Update

New paperwork and systems for exporters continue to lead to delays. 

This is nowhere more apparent than for the UK shellfish industry that has been particularly hard hit. This month the European Commission confirmed that British farmed and wild molluscs would be banned on the grounds of public health. Now shellfish can be transported to the EU only if they have been first treated in purification plants.  Defra has now stated that it would widen the eligibility of the £23 million support package for exporters across the UK if they had faced a financial loss due to failures in EU import process to some in the UK fishing industry.  Some reports go further and state that ministers are looking at proposals dubbed ‘Water Wars’ that could see the UK end a number of continuity arrangements it has agreed with the EU; such as mineral water and seed potatoes (the latter under a temporary agreement until the end of June.) Others suggest a ‘tit for tat’ of slowing down the UK’s approval of fishing licences to EU vessels seeking access to the UK’s territorial waters.

The system by which certain shelf stable composite food products that contain products of animal origin (POAO), such as milk or egg of less than 50%, but no processed meat, and may claim exemption from official controls at border posts looks to become increasingly restricted rather than extended by a new draft regulation. The restriction will come into place on 21^st April 2021.  This will delete Article 6 and Annex II from Decision 2007/275.  The exemptions will no longer be based on the quantities of processed POAOs expressed in percentage of ingredients of the composite product.

2. Arbitration Clauses

the English High Court considered the question of whether a GAFTA arbitration clause could be implied into an agreement between parties by market practice and custom in  Black Sea Commodities Ltd v Lemarc Agromond PTE Ltd [2021] EWHC 287 (Comm). It is a useful reminder for parties as to the importance of ensuring that their agreements contain dispute resolution clauses generally and in particular for those that want to use arbitration.  S5 Arbitration Act 1996 makes clear that arbitration agreements have to be in writing and agreed between the parties although adoption of such a clause can be made by reference in the agreement to another document which contains an arbitration clause (s6(2) Arbitration Act 1996). See more information here. 

3. Corporate Social Responsibility & Human Rights

Claims based on allegations of serious human rights abuses against local residents by security guards employed by Kakuzi Plc (“Kakuzi”), a company within the Camellia group that supplies avocados to British supermarkets were settled this month for a stated £4.6m. Kakuzi had supplied British supermarkets including Sainsbury's, Tesco and Lidl with avocados until all three cut ties after news of the lawsuit emerged last October.  Camellia stated that "an innovative and mutually beneficial resolution of all the claims has been reached, without any admission of liability by the companies or by Kakuzi".  Kakuzi has also agreed to put in place a comprehensive grievance mechanism which will deal with any other human rights complaints in the future and will be subject to independent oversight. 

This illustrates the ongoing responsibility of those to ensure their responsibilities of corporate responsibility and modern slavery are adhered to and evidenced for those within their group of companies and supply chain.

4. Advertising Standards Authority (ASA) Food Related - Roundup February: Marketing

Guidance on scheduling decisions for High in Fat Salt or Sugar (HFSS) food adverts is set out in an ASA decision on ITV as a two-part test;

1.iconsidering the age range the programme is ‘principally directed or commissioned for;’ and,

2. whether this is backed up by any substantiating audience data.

In the ITV case the ASA considered that although some of the intended audience would be under 16, it was also directed at adults and families.  In addition, the Broadcaster’s Audience Research Board (BARB)  data provided by ITV demonstrated clearly that the broadcast of the film on the date that the ad was shown, and the previous three broadcasts of the film, had not been of particular appeal to audiences below the age of 16. 

A separate ASA ruling looked at the importance of ensuring that marketing communications must be obviously identifiable as such. A letter from Beer52 was sent enclosed simply in a white windowed-envelope.  The ASA noted there was nothing on the envelope in which the ad was sent to identify that it contained a marketing communication and upheld the complaint.