Election Special
Prime minister Rishi Sunak called a general election, for 4 July, on Wednesday 22 May.
The same night 'the Food Law Group' had a seminar with Daniel Zeichner shadow Minister at Defra; ‘Food in the Face of Elections’
The food and agri sector is likely to be a fierce fighting ground for policy. In particular, food security vs public goods. Certainly the need for a plan was referenced at the FLG meeting several times as well as the need for certainty and a resolution of practicality, consistency and proportionality.
Separately, politicians have been wrapping up the final pieces of business in a process known as ‘wash up’ which has resulted in the Digital Markets, Competition and Consumer (DMCC) Bill being passed.
Other areas of focus include:
• Not for EU labelling: Regulations have not yet been laid but the broader Windsor Framework and the January command paper secured cross-party agreement despite concerns raised by industry.
• Forest Risk Commodities.
• HFSS advertising.
• EPR and DRS.
• Ultra Processed Foods (UPF): The Health Secretary, Victoria Atkins, has announced that she has asked the National Institute for Health and Care Research to gather evidence on ultra-processed foods. “I have asked our National Institute for Health and Care Research to gather evidence on the impacts of ultra-processed foods on health to help us support people to make informed and healthy choices” NHS - Hansard - UK Parliament. When there is no agreed clear definition of UPF. Classification systems identified generally did not consider the nutritional content of products or known associations between specific processed foods and health, the available evidence is almost exclusively observational in nature and there was inconsistent adjustment for covariables. There are uncertainties around the quality of evidence available and consumption of (ultra-) processed foods may be an indicator of other unhealthy dietary patterns and lifestyle behaviours. SACN statement on processed foods and health - summary report - GOV.UK (www.gov.uk)
Once Parliament has closed, the general election campaign will begin and it is expected that parties will release their manifestos in the next fortnight.
Digital Markets, Competition and Consumers (DMCC) Bill brings the CMA and a 'big stick' to consumer protection laws
A seismic change to competition and consumer protection law has now been ushered in via the Digital Markets, Competition and Consumers Bill (DMCC) Digital Markets, Competition and Consumers Bill - Parliamentary Bills - UK Parliament.
The Digital Markets, Competition and Consumers (DMCC) Bill was passed as part of the ‘wash-up’ process this week before electioneering start in earnest. The Act is expected to come into force in autumn this year.
It will create a regime to empower the Competition and Markets Authority (CMA) to regulate and increase competition in digital markets. The bill also updates powers to enforce competition law and resolve consumer disputes, and protects consumers from unfair commercial, subscription, prepayment and saving schemes.
All businesses that are consumer facing will need to consider the impact of the DMCC. For the food sector in particular the importance will lie in the Competition and Markets Authority (CMA) now having the power to directly enforce consumer protection laws in the UK and sanction breaches and will cover misleading consumer claims, including misleading environmental claims ie greenwashing. This will mean that cases will no longer need to go through the courts so there will not be the judicial brake on the CMAs powers of enforcement. In recent years the CMAs investigations have been particularly on green advertising claims and fair pricing.
The CMA will be able to enforce against any businesses that sell to UK consumers, B2C. If the CMA find that businesses have breached consumer laws they may impose significant fines of up to 10% of global turnover. The CMA will also be able to use other powers, such as making enforcement orders, interim orders or accepting commitments, or taking court action.
It is recommended that all consumer-facing businesses consider the totality of their consumer facing information, ie via a 'consumer compliance audit' or similar, due to the new and far greater risk environment this will entail.
CMA presses ahead with full investigation into vet’s market
The CMA has launched a number of investigations into so-called greenwashing in the food and consumer goods sector as well as pricing of consumer goods via petrol forecourts and retail loyalty schemes. The CMA confirmed this week its decision to launch a market investigation into the veterinary sector and published tips to help pet owners struggling with vet costs now CMA presses ahead with full investigation into vets market - GOV.UK (www.gov.uk).
New and ‘improved’ Sustainable Farming Incentive (SFI)
Defra has announced the expansion of an “improved” Sustainable Farming Incentive, which now contains 102 sustainability-led actions farmers can be paid for. Defra has stated the new actions would help farmers to reduce input costs and boost yields. This year’s Sustainable Farming Incentive offer – Farming (blog.gov.uk)
The SFIs will also be open to new entrants and includes more than 20 new options to support more sustainable food production. Payments will now be made to farmers for actions including precision farming and agroforestry, while there is also a new and expanded offer for upland farmers and more actions for tenants on short-term contracts. As well as support for flood preparedness. SFI scheme information: expanded offer for 2024 - GOV.UK (www.gov.uk)
The expanded SFI offer will be available to most farmers at scale by the end of July. By then, voluntary guidance will be available.
If farmers want to apply for the expanded SFI offer, the first step is to register your interest with the Rural Payments Agency (RPA).
The NFU has described the SFI’s update and its broader and more flexible scope as “encouraging”.
It comes as the Welsh Government last week confirmed the rollout of its own equivalent of the SFI, the Sustainable Farming Scheme, will be postponed by a year to 2026.
Co-op links sustainability targets to Credit Facility
The Co-op has set new sustainability and social targets linked to its £442m Revolving Credit Facility.
It aims to reduce carbon emissions across the supply chain, with two-thirds of suppliers enrolled in the Science Based Targets initiative by end of 2025, from a base line of 37%. Another aim is to reduce approx 650 tonnes of food waste per year across stores and depots, having already committed to halving food waste by 2030.
Former Groceries Code Adjudicator Christine Tacon becomes member appointed Director and steps down from Red Tractor chair.
Regulated Food Approval System; ‘International Cooperation’
FSA has been reported in the Grocer as stating there will be an overhaul of the approval system to that of one that proposes to use international co-operation for approval of lab-grown meat, CBD products and insect foods, next month. FSA to use international approvals for lab grown meat | News | The Grocer
The countries involved include Singapore, where lab-grown meat was approved for sale last year, as well as Australia and New Zealand.
The FSA is reportedly planning to unveil a “sliding scale” of international agreement for the approval or regulated products, which would be based on the track record of other countries. However, the European food regulator, EFSA, is absent in the list of collaborators.
The Food Standards Agency has further been reported as stating it expects to be able to issue full authorisations for CBD products in the UK by spring 2025.
MSM Meat Guidance and impact on Chicken Suppliers
The consultation on mechanically separated meat (MSM) guidance closed on 22 May 2024 Consultation on mechanically separated meat (MSM) guidance | Food Standards Agency. As referenced in our update of 12 March 2024 Food & Agri Update - 12 March 2024 - Mills & Reeve (mills-reeve.com)
The Food Standards Agency (FSA) consultation is intended to guidance following court judgments that clarify how the definition of mechanically separated meat (MSM) should be interpreted and applied.
However, chicken suppliers have highlighted the extensive losses this may involve if the FSA plans to reclassify wishbone meat as mechanically separated meat.
A 2019 Supreme Court ruling determined three key criteria for the classification of MSM – one of which was the use of methods of mechanical separation to recover meat from bones.
While wishbone meat is sourced in this manner it had been been classified since 2004 as a ‘meat preparation’ instead. It is commonly minced and widely used in breaded chicken products.
The FSA’s proposals to adopt the ruling’s criteria was described in a report by the Grocer as an “excessively broad interpretation of this judgement”, according to the British Poultry Council. Wishbone meat was “good quality meat”, the BPC said. And as a result, it was “overreaching its mission to ‘protect the interests of consumers in relation to food’”.
Live Animal Exports
The Animal Welfare (Livestock Exports) Act came into effect 20 May 2024 and mandates that animals are slaughtered domestically. This will mean the export of live animals for fattening and slaughter from the UK is prohibited and covers cattle, sheep, goats, pigs and horses. Export of live animals banned - GOV.UK (www.gov.uk)
Extended Producer Responsibility (EPR) data submission reminder
The reporting of data obligations under the new Extended Producer Responsibility for packaging (EPR) scheme, will have a deadline of 31 May 2024. A reminder has been provided by Defra to please submit relevant July to December 2023 data by 31 May 2024. Guidance is available on who is affected and what to do and what data to collect on gov.uk.
Choking Hazards in Food
Kellanova has recalled Chocolate Corn Flakes after identifying a potential choking hazard.
It has received complaints from consumers who have found that the product contains hard lumps of cereal that do not break down when eaten with milk.
Although the defect impacted reportedly “a small proportion of boxes”, it meant there was “a minimal risk these hard lumps could potentially cause dental damage or be a choking hazard”, said Kellanova.
“It’s important to say that the risk of injury from these hard lumps of chocolate cereal is minimal but we’re not willing to compromise on quality or safety,” said a spokeswoman for Kellanova.
Choking Risk Assessment
Any food that is small enough to fit inside a child's mouth is considered a choking hazard. Foods that are hard, sticky, or round can be more likely to get stuck in the airway. Smooth and slippery foods are also dangerous because they don't break down easily if they get lodged in the throat.
Anything smaller than a 2 pence piece can choke a young child. For example, toys for under 36 months, made to proper safety standards, won't have small parts that can choke.
In 2003, the European Union permanently banned the food additive E425 konjac, konjac gum or konjac glucomannan in jelly confectionery (Commission Decision 2004/374/EC), following earlier reports that they could pose a risk of death by choking, particularly to children and old people.
Aside from choking risks associated with particular products, there are no general regulations in the EU regarding the hazard of choking on food.
In the absence of other specific legislation there is the general food safety regulations Article 14 of EU regulation 178/2002.
Food Business Operators (FBOs) can look to risk assessment. This should consider the parameters of size, solubility, compression, accessibility and penetration of the food dependent on anthropometry (measurements and proportions of the human body) and the type of consumer who would consume the product and in what way etc ie a vulnerable consumer such as a child are considered most at risk. As well as any warning labels or instructions for use.
With no specific EU standards on choking on food, regard can be had to other standards. For toys and childcare articles the use of the small parts cylinder (SPC) is used to determine whether the product or component of the toy presents a potential choking hazard. The small parts cylinder is a truncated cylinder having a diameter 31.7 mm, a short length of 25.4 mm and long length of 51.7 mm where the component is required to fit wholly within the cylinder without compression and not protruding.
Manufacturers need first to be clear about whether their product poses a risk of choking and the level of risk. Appropriate warning labels may also be considered.
However, in the current case where there is an expectation of the type of food and the risk of vulnerable consumers the FBO must prioritise the safety of consumers.
Compliance with Enforcement Authorities
Anglian Water Services Ltd has been found guilty of failing, without reasonable excuse, to comply with a requirement to provide records by the Environment Agency.
The water company was convicted with the case adjourned to 5 July 2024 for a sentencing hearing to take place at Peterborough Magistrates’ Court.
The case was brought by the Environment Agency against Anglian Water Services Ltd, which arose out of a wider criminal investigation involving all ten water companies into potential non-compliance with environmental permit conditions at over 2,000 wastewater treatment works. Anglian Water Services Ltd had entered a not guilty plea to the charge, claiming that they had a reasonable excuse for non-compliance. Anglian Water Services Ltd convicted in Environment Agency case - GOV.UK (www.gov.uk)
ASA Rulings
AHK Designs Ltd t/a Victoriaplum.com Upheld 22 May 2024 AHK Designs Ltd - ASA | CAP
A website, Instragram account and X account for Victoria Plum made misleaing claims about the longevity of the brand, its customer service reviews and its total number of customers served.
Avensure Ltd t/a Employment Law Advice Bureau Upheld 22 May 2024 Avensure Ltd - ASA | CAP
A direct mailing to a business was not obviously identifiable as an ad. In order for direct mailings to be obviously identifiable as marketing communications, recipients should be able to tell from the envelope itself that it was a marketing communication.
Kingsland Drinks Ltd t/a Kingsland Wines & Spirits Upheld Packaging (promotion) 22 May 2024 Kingsland Drinks Ltd - ASA | CAP
A label on a bottle misled consumers by failing to disclose the significant conditions of a competition. The mechanics of the promotion meant that potential participants needed to enter within 14 days of the final bottle being purchased to ensure that their entry was included when the draw took place. However, potential participants had no way of knowing how many promotional bottles were still left to sell. With wine being a non-perishable product, bottles could be on shelves for months. All purchasers would therefore need to enter the promotion within 14 days of purchase to ensure they could participate. The ASA therefore considered that information about the circumstances in which the draw would be undertaken was significant information about how to participate, which should have been communicated in the ad.
We Are TALA Ltd Upheld Internet (social networking) 22 May 2024 We Are TALA Ltd - ASA | CAP
Two Instagram reels and four TikToks on influencer Grace Beverly's accounts were not obviously identifiable as ads. Advice provided that identifiers such as “#ad” should be clearly and prominently displayed