REUL Bill passes Lords
The Retained EU Law (Revocation and Reform) Bill received its Royal Assent last Thursday, which means it is now the Retained EU Law (Revocation and Reform) Act 2023.
Peers accepted the will of the Commons, which had three times rejected two Lords amendments, one on environmental protection and the other on parliamentary scrutiny of statutory instruments. Peers tabled but did not press further amendments, despite continued concern, especially on environmental protections..
On parliamentary scrutiny, Lord Hope of Craighead, another Crossbench peer, and one of the chief architects of the relevant Lords amendments, took some comfort from the assurances provided by the Minister, Lord Callanan, who said the Government would continue always to follow the recommendations of the European Statutory Instruments Committee in deciding what scrutiny procedure to apply to particular SIs.
Key upcoming Dates:
- Late 2023: The new requirements for Export Health Certificates for EU imports into Great Britain are subject to further delay – new date to be confirmed.
- Late 2023: Phytosanitary Certificates and physical checks on most remaining SPS goods (such as meat and plants) at GB Border Control Posts are subject to further delay – new date to be confirmed.
- Late 2023: Safety and Security declaration requirements on EU imports into GB are now subject to further delay – new date to be confirmed.
- December 2023: date noted in Retained EU Law (Revocation and Reform) Bill for ending the special status of EU legislation in UK domestic law.
- 31 December 2025: End of grace period to facilitate the entry into Northern Ireland of veterinary medicines from Great Britain.
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Alcohol Duty ‘Unfreeze’ – 1 August 2023
The government will lift its three-year alcohol duty freeze, releasing a 10.1% cost increase this summer.
The freeze’s end coincides with a “radical” new alcohol duty system to “simplify” the current structure and tax alcoholic products the stronger they get, and is the biggest single increase to alcohol duty in nearly 50 years.
Alcohol duties - A blanket alcohol duty freeze will end on 1 August, meaning levies will rise in line with inflation at 10.1%. The effect on prices will be coupled with increased duty on higher strength drinks planned as part of reforms of alcohol duty unveiled in 2021.
This will mean a 44p increase in the price of a bottle of wine with an ABV of more than 12.5%, according to the Wine & Spirits Trade Association (WSTA), while a bottle of vodka could rise by 76p and port may be £1.30 more per bottle.
A smaller number of drinks will go down in price, including 14p off a 5% pre-mixed can of G&T and 7p off sparkling wine at 12%, while the government has said there will be transitional arrangements for the hardest-hit products
Duty rates were frozen in the government’s 2020 autumn budget during the pandemic and extended for a further six months in February to 1 August this year. This was to provide certainty to businesses dealing with pandemic fallout as well as cost of living strains.
Household food insecurity in the UK: data and research landscape
An evidence scoping review looking into the landscape of research and data on Household Food Insecurity in the UK has been conducted by the FSA. It identifies existing data and key gaps in the evidence base. Household food insecurity in the UK: data and research landscape | Food Standards Agency
It was found there were a variety of data and analyses of food insecurity that have used to better understand the experience, its measurement, what puts households at risk, and interventions that might make a difference to households’ ability to access food.
Gaps identified include a need for different comparison survey tools, better data on local level food insecurity, more research on how interconnected social characteristics such as gender, ethnicity, and age relate to risk of food insecurity, more research on social and development outcomes in relation to food insecurity, and more evaluation on the potential prevention and mitigation of food insecurity through various programmatic and policy interventions.
This collation of data will therefore help build a strong foundation for evidence based action and further effective data gathering for the future to have a meaningful impact on food insecurity.
Private Sector & Food Insecurity
Private sector response data to food insecurity involved ‘grey literature report’ Kennedy and Snell (2021) involved a programme of knowledge exchange work with a supermarket partner to better understand what activity they were undertaking in relation to food insecurity that involved a literature review, workshop with food charity practitioners and a webinar.
Additionally research funded by national funding body, the Leverhulme Trust, is exploring the relationships between large UK food companies and food charities. The research aims to come to a better understanding of the scale and nature of the involvement of food companies in charitable food provision and explore the implications of these relationships for food charity systems (PI: Lambie-Mumford; funded in 2023).
This will be useful for private sector organisations to also have targeted meaningful action alongside charities if they so choose.
Lidl vs Tesco – potential for an injunction after appeals have been resolved
Lidl is entitled to an injunction to stop Tesco using its Clubcard logo, London’s High Court has ruled two months on from the German discounter’s legal victory, which proved the market-leader had copied its design.
Tesco was found in April to have infringed Lidl’s trademark with its blue and yellow Clubcard logo in an attempt to “deceive” customers on price and value. The latest instalment in the ongoing fight comes after Lidl sought an injunction to stop Tesco infringing its trademark.
On 21 June, Judge Joanna Smith ruled Lidl is entitled to an injunction, but it will not come into effect until any appeals from either retailer have been resolved. If it is approved Tesco will have to remove all evidence of the offending logo, which could set it back as much as £8m.
Water Scarcity now a top environmental concern for consumers
As the prospect of a second consecutive summer of drought looms large across Europe, water is rapidly rising up the sustainability agenda.
The number of consumers around the world who rank water shortages in their top three environmental concerns has risen faster in the past year than for any other environmental issue, according to a survey from market research firm Mintel.
In 2021, less than three in ten (27%) people declared themselves worried about water shortages, a figure that rose to 31% in 2022 and 35% in 2023.
Respondents to the Global Outlook on Sustainability report were asked to rank their top three environmental issues of concern in order. Climate change ranked first followed by air quality with water shortages ranking third. That puts water ahead of plastic pollution which has fallen as a priority issue of concern from 36% in 2021 to 32% this year
ASA updated Guidance on Greenwashing
On 23 June 2023, the ASA published an update to its advertising guidance on misleading environmental claims and social responsibility New advertising guidance on misleading environmental claims and social responsibility - ASA | CAP. It was stated the ASA intended to take a firm, but ‘proportionate’, approach against greenwashing claims.
The latest updated Guidance contains a new section that draws on principles established by recent ASA rulings, as well as principles found in the CMA’s Green Claims Code Green Claims Code – Check your environmental claims are genuine.
Summary of the key advice:
- Marketers must consider consumers’ likely interpretation of a claim, bearing in mind how knowledgeable the audience is likely to be.
- Ads must make clear if any advertised environmental benefit will only result from specific consumer action or behavioural change.
- If an advertiser references its compliance with a particular standard, the ad should provide consumers with sufficient information to understand the meaning of that standard.
- Claims that a product can be recycled must be substantiated and must make clear any limitations to this.
- Claims which relate narrowly to specific products should make this scope clear, to ensure that they are not understood as being representative of the entire business.
- Marketers should include balancing information about the business’s significant ongoing contribution to emissions or other environmental harm — particularly in sectors in which consumers are less likely to be aware of the business’s overall contribution to emissions or other environmental harm.
- Businesses should be careful about using imagery of the natural world, which may, depending on the context, contribute to the impression that the business is making a significant contribution towards reducing greenhouse gas emissions.
- Absolute claims (such as “sustainable” or “environmentally friendly”) must be supported by a high level of substantiation.
- Ads which present a business’s negative environmental impact as being in the past are likely to mislead if the business is still creating a significant negative impact.
- Ads which focus on specific initiatives as a way of achieving net zero should clearly contextualise those claims with information about the role that the initiative would play in that net zero plan, and how and when net zero emissions will be achieved. When making such claims, the timeframe to achieve a net zero goal is likely to be considered material information and should be stated in the ad.
Dirtea Ltd t/a Dirtea Upheld Social media (own site) 28 June 2023
Five Instagram posts on the Dirtea Instagram page and a paid-for Facebook ad claimed the product food supplement could prevent, treat or cure various human diseases.
The ASA considered the claims in the ads relating to anxiety, dementia, attention deficit hyperactivity disorder (ADHD), Alzheimer’s, pre-menstrual syndrome, menopause, acne, rosacea, eczema, flu, and the anti-inflammatory, analgesic, antipyretic, hepatoprotective, and sedative properties of the products were likely to be interpreted as claims to prevent, treat or cure human disease. The CAP Code prohibited claims which stated or implied a food could prevent, treat or cure human disease. It was therefore concluded the ads breached the Code.
Burton’s Foods Ltd v Not Guilty Food Co Ltd - Trade Mark Appeal Requirements
Evidence of actual confusion is not always enough to establish likelihood of confusion. An interesting judgement setting out the parameters of a trade mark application appeal.
The UK Intellectual Property Enterprise Court has rejected an appeal by Not Guilty Food Co Ltd (NGF), who was seeking to stop a Trade Mark application by Burton’s Foods Ltd (the respondent Burton’s ) for a figurative trade mark in class 30 ie baked goods.
NGF had earlier similar registrations ref ‘Skinny food’ covering identical or highly similar class 30 goods.
It was found the relevant goods were likely to be purchased quickly with little reflection by the average consumer and the distinctiveness of NGF’s marks were low. Ie “skinny” being in widespread use to mean something low fat, the mark’s combination of elements had only the “minimum degree of distinctiveness required for registration”.
Comparison of marks
In comparing the respective marks at first hearing, the hearing officer’s (HO’s) concluded that the marks were visually and aurally similar to a reasonably high degree and conceptually similar to a medium degree. The majority of the class 30 goods applied for by the respondent were considered either identical or highly similar to the appellant’s class 30 goods.
Despite NGF submitting examples of (alleged) actual confusion, the HO held there was no likelihood of direct or indirect confusion between the trade marks, causing the NGF to lodge the appeal.
Appeal
The appeal referenced the high threshold to be reached and the need to establish a ‘wrong’ decision. Furthermore, it was held that the NGF’s evidence of confusion had been properly scrutinised and considered but that “pointing to actual instances of consumer confusion does not, in and of itself, prove that there is a likelihood of confusion”.
Where there is no likelihood of confusion, the more onerous requirement of a misrepresentation causing deception under common law passing off will not be made out.
Summary of discussions at the FSA Board meeting, 21 June 2023 
The Food Standards Agency Board discussion included a report on the Risk Analysis Process and Regulated Products Service, an update on Import Controls and the Target Operating Model (TOM), and Chief Executive Emily Miles commented on the FSA’s independent scientific advisory committees.
- Risk Analysis Process and Regulated Products Service
FSA’s risk analysis process is the process of assessing, managing and communicating food and animal feed safety risks, ensuring high standards of food and feed safety to protect consumers.
It was stated there had been steady progress however this would be looked at again in September and a paper on ‘radical reform’ will be considered. The Board asked for greater pace and ambition in the longer-term reform agenda.
- Import Controls and the Target Operating Model (TOM)
The risk-based approach to controls and continuous improvement review processes in place, to ensure the system remains proportionate to the risks was agreed to be maintained.
The ‘Trusted Trader’ schemes were supported. FSA Chair, Professor Susan Jebb, noted that the absence of import controls from the EU was identified as a risk in last year’s annual report and that bringing the controls into force from autumn is critical to maintaining the UK’s high food and feed safety standards and consumer confidence.
- The FSA’s independent Scientific Advisory Committees
The FSA’s independent Scientific Advisory Committees (SACs) and particularly the role of the Committee on Toxicity (COT) - whose members work in a range of sectors including academic departments and industry - providing expertise in specialist areas of toxicology was referenced. The fact that scientists may work in separate areas including the private sector should not be seen as undermining their impartiality. Lord Blencathra said: “that does not make them biased, and it’s terribly important that we defend their integrity.”