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Food and Drink update – August 2016

Lime cut in half Print publication

24/08/2016

Richard Naish of the Walker Morris Food & Drink Group presents a round-up of some recent legal developments in the sector.

Advertising

The Advertising Standards Authority (ASA) has upheld a complaint that the use of the terms “Full of Goodness” and “Nutritious” in online and TV advertising for ‘Special K’ constituted generic health claims, which are required to be accompanied by a specific EU-authorised health claim to comply with the advertising codes.  This was notwithstanding that the advert had been cleared by Clearcast – the company responsible for the pre-transmission examination and clearance of television advertisements.

According to EC Regulation 1924/2006 on Nutrition and Health Claims made in Foods, which is reflected in the CAP and BCAP Codes, references to the general benefits of a nutrient or food for overall good health or well-being are acceptable if accompanied by a specific authorised health claim.  In this case, the specific authorised health claims relied upon by Kellogg’s were not showing on the advert at the same time as the general claims it was making.

Competition damages

The Competition Appeal Tribunal (CAT) has recently awarded damages of £68.5 million in favour of Sainsbury’s in its private, stand-alone action against MasterCard for infringement of competition law.  The comparative swiftness of the case before the CAT and size of the damages award may stimulate competition damages actions generally, where third parties suffer economic loss caused by a breach of competition law.  We expect to see a significant increase in competition damages claims including in respect of the food sector.

We reviewed the implications of the CAT decision for competition damages claims in this article.

Data protection

The challenge of ensuring cross-border data transfers are lawful is notoriously problematic. The EU-US Privacy Shield was finally adopted on 12 July.  The Privacy Shield is the hastily assembled successor to the Safe Harbor, which was ruled invalid last year by the CJEU.  As our article on the Privacy Shield illustrates, not all the criticisms levelled at the Safe Harbor have been answered and the consensus is that it will not be too long before the Privacy Shield too becomes subject to a judicial challenge.

Product liability

A quick glance at the Food Standards Agency (FSA) website will reveal a steady flow of recalls of food and drink products over the last 12 months.  This flow appears to have quickened appreciably following the introduction of the new labelling requirements around allergens.

Insurers reportedly expect food liability cases, particularly food labelling cases, to be a “hot topic” within product liability claims in the coming years.

We have written previously on the steps food and drink businesses can take to position themselves to defend any claims for compensation that may arise from mis-labelled products supplied to them and to enable liability, should any be incurred, to be passes down the supply chain.

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