Food & Drink update – April 2018


New EU legislation designed to reduce acrylamide in food
Acrylamide is a substance which forms naturally during high temperature and low moisture cooking and […]
Acrylamide is a substance which forms naturally during high temperature and low moisture cooking and processing, such as frying, roasting and baking. It is particularly prevalent in processed foods that are high in starch such as potato based products, root vegetables and cereal based products.
Laboratory tests have shown that acrylamide in the diet causes cancer in animals and while evidence from human studies is inconclusive, scientists agree that acrylamide in food has the potential to cause cancer in humans as well.
Whilst it is not possible to eliminate acrylamide completely from foods, it is possible to take steps to try and ensure that acrylamide levels are as low as reasonably possible. This is the reasoning behind the new Commission Regulation (EU) 2017/2158 which came into force this month.
As from 11 April 2018, all food business operators (FBOs) are now required to put in place simple practical steps to manage acrylamide within their food safety management systems. They are expected to:
- be aware of acrylamide as a food safety hazard and have a general understanding of how acrylamide is formed in the food they produce
- take the necessary steps to mitigate acrylamide formation, adopting the relevant measures as part of their food safety management procedures
- undertake representative sampling and analysis where appropriate to monitor the levels of acrylamide in their products
- keep appropriate records of the mitigation measures undertaken, together with sampling plans and results.
The new legislation applies to all FBOs that produce or place on the market the following foods:
- french fries and other deep fried products from fresh potatoes
- potato crisps, snacks and crackers made from potato dough
- breakfast cereals (excluding porridge)
- cookies, biscuits, rusks, cereal bars, scones, wafers, crisp breads and other bread substitutes
- coffee (roast and instant)
- baby foods and processed cereal based foods intended for infants.
WM Comment
Industry guidance has been developed by various food sector organisations (for example the acrylamide tool box) to help you navigate the new rules and in addition the Food Standards Agency is also working with key trade associations to develop a best practice guide. We will let you know when this has been published.

Rules of origin and the possible effect of Brexit on the food and drink sector
The European Commission has issued a Brexit notice to food business operators regarding the legal […]
The European Commission has issued a Brexit notice to food business operators regarding the legal repercussions of the UK leaving the European Union. The Commission warns that EU food law may cease to apply to the UK from 30 March 2019 onwards. The consequences of this may include that labelling on food sold in EU markets will need to change, that food business operators, authorisation holders and/or their representatives will need to be established in the EU, and that import of food from the UK into the EU may be prohibited (unless certain requirements are met).
Food labelling
EU food law harmonises the labelling of food placed on the EU market, including regulations on food information, nutrition and health claims. Changes may be required due to the UK being a ‘third country’ as of the withdrawal date. These may include mandatory labelling of the name and address of the importer of the food from the UK, mandatory labelling of the origin of the food product and the removal of the ‘EC’ abbreviation from the health or identification mark.
Establishments in the EU
To comply with some aspects of EU food law, the food business operators, authorisation holders and/or their representatives must be established in the EU. For example, according to the regulation on genetically modified food and feed, the applicant for an EU authorisation or his representative must be established in the EU. As of the withdrawal date, any food business operator in the UK will no longer comply with this requirement and therefore, as it stands, will not be able to obtain authorisation to sell genetically modified food into the EU. UK operators may have to establish satellite offices in the EU in order to obtain the necessary authorisations.
Food production and food hygiene rules
There are many rules and regulations relating to food production and food hygiene which will need to be considered before the UK withdraws from the EU. For example, the importation of irradiated food from the UK will be prohibited unless certain requirements are met as will food of animal origin. None of these obstacles are insurmountable but they need considered attention.
Rules of origin
A new report commissioned by the Food and Drink Federation (FDF) – “Rules of origin in an EU-UK FTA: A ‘hidden hard Brexit’ for food and drink exporters” warns that the UK’s food and drink manufacturing sector could face tough conditions once the UK leaves the EU as a result of rules of origin.
The report by the FDF reveals that due to the international nature of food and drink manufacturing, many UK producers have built supply chains within the EU’s single market which may fail to comply with future origin requirements. Manufacturers could face the prospect of either a costly restructuring of their supply chains or in effect barring from future EU-UK trade as a result of the tariffs which are prohibitively high for food and drink. The report goes on to suggest eight practical recommendations that the UK and the EU can take to minimise disruption to the trade in food and drink.
Ian Wright of the FDF said “Rules of origin are a big piece of the Brexit puzzle for the food and drink industry. If we fail to secure sufficiently generous rules as part of a preferential trade agreement with the EU, food and drink manufacturers will be the ones who suffer this hidden hard Brexit. They could be facing an increase in exporting costs, or a complete ban of entry to the market. This report is essential reading for those who want to avoid both.”
WM comment
If you need help navigating the minefield of Brexit please contact us sooner rather than later.

ASA ruling on use of ‘100% natural ingredients’ claim
A poster advertising campaign in August 2017 for Go Ahead Goodness bars made by United […]
A poster advertising campaign in August 2017 for Go Ahead Goodness bars made by United Biscuits claimed that the cereal bar was “crammed with 100% natural ingredients”.
The advert was challenged on the basis that the product contained ingredients that would not be understood to be ‘natural’ by consumers and so the claim of “100% natural ingredients” was misleading. The two key ingredients that were central to the issue were sunflower oil and fat reduced cocoa powder.
The Food Standards Agency published guidance in 2008 on the use of certain marketing terms including ‘natural’. The guidance noted that, providing the ingredients were not chemically altered or produced using new technologies, the ingredients could be classified as natural. It stated that products described as natural should be made using ingredients “produced by nature and not the work of man or interfered with by man”. Processing must be limited to that required as to render the product suitable for human consumption.
United Biscuits provided a list of ingredients found in their Go Ahead Goodness bars and stated that those ingredients were all made in a traditional manner and were typical of ingredients normally found in consumers’ food cupboards. They accepted that sunflower oil and cocoa powder did undergo a degree of processing however they were not new technologies and had existed for many years. In their view both cocoa powder and sunflower oil were readily found in people’s cupboards and were therefore likely to considered natural to the average consumer.
However the Advertising Standards Authority (ASA) did not agree and upheld the complaint. In the view of the ASA, consumers would understand the term natural in the context of the claim “100% natural ingredients” to mean the product was made using ingredients that were completely natural. They didn’t think that sunflower oil or fat reduced cocoa powder would be thought of as natural ingredients by consumers even though the processes used to obtain them were minimal. Therefore the advertisement was deemed to be misleading and ordered not to appear again.
WM Comment
This is a strict interpretation of the meaning of minimal processing within the context of ‘natural ingredients’ so care should be taken when making claims about natural products in the future.

Food producers told to reduce calories in popular foods by 20%
Public Health England (PHE) is an executive agency of the Department of Health and its […]
Public Health England (PHE) is an executive agency of the Department of Health and its remit is to address health inequalities and promote health and well-being. One priority for 2018 is to “support people to make healthy choices” and it has resolved to deliver a programme of work which significantly reduces childhood obesity. Although its role is to give guidance, some of its recommendations have become legislation such as the Soft Drinks Levy and therefore the threat of legislation to back up its demands is very real.
PHE’s challenge to the food industry is set out in Government’s publication “Calorie reduction: the scope and ambition for action.” As with the sugar reduction programme, PHE states that the food industry has three ways to reduce calories:
- change the recipe of products
- reduce portion size
- encourage consumers to purchase lower calorie products.
Categories of food covered by the programme include pizzas, ready meals, ready-made sandwiches, meat products and savoury snacks. PHE states that if the target of a 20% calorie reduction within five years is met, more than 35,000 premature deaths could be prevented and £9 billion in healthcare costs could be saved over a 25 year period.
Duncan Selbie of PHE said “Industry can help families by finding innovative ways to lower the calories in the food we all enjoy and promoting UK business leadership on the world stage by tackling obesity.”
WM comment
The focus on overall calories rather than individual nutrients has been welcomed by the Food and Drink Federation. The FDF has long since advocated an approach to tackling obesity which looks beyond individual nutrients and instead focuses primarily on calories.

Deposit return scheme in fight against plastic
Defra (the Department for Environment, Food & Rural Affairs) has announced that a deposit return […]
Defra (the Department for Environment, Food & Rural Affairs) has announced that a deposit return scheme for single-use drinks containers will be introduced, subject to a consultation later this year, in a bid to increase reduce plastic waste. The consultation will look at how the scheme will work and the scope of the measures to reduce waste and increase recycling rates. Click here to see our previous article.

Soft drinks industry levy is in force
As reported last year, Government has introduced legislation enabling the introduction of the Soft Drinks […]
As reported last year, Government has introduced legislation enabling the introduction of the Soft Drinks Industry Levy (SDIL) in an attempt to reduce the consumption of sugary drinks. This so called sugar tax came into force earlier this month.
A drink is liable for SDIL if it meets all of the following conditions:
- it has had sugar added during production or anything (other than fruit juice, vegetable juice or milk) that contains sugar such as honey
- it contains at least 5 grams of sugar per 100 millilitres in its ready to drink form
- it’s either ready to drink or, to be drunk, needs to be diluted with water or crushed ice or mixed with carbon dioxide
- it’s bottled, canned or otherwise packaged
- it has a content of 1.2% alcohol by volume (ABV) or less.
If a drink meets the above criteria SDIL will be charged at one of two rates depending on the level of sugar. The standard rate is £0.18 per litre of prepared drink with a higher rate of £0.24 per litre being applied to soft drinks that have a higher sugar threshold.
As a drinks business (unless you can rely on the small producer exemption) you must register with HMRC for SDIL if:
- you own a brand of a liable drink or produce liable drinks under another brand
- you bottle, can or otherwise package liable drinks for someone else
- you import liable drinks.
SDIL will be charged by reference to fixed quarterly accounting periods ending on 31 March, 30 June, 30 September and 31 December and the legislation provides for two specific criminal offences for non-payment. Fraudulent evasion of SDIL carries a maximum potential sentence of seven years’ imprisonment while the second offence of failure to notify HMRC of the liability to register for the levy carries a maximum potential sentence of three years’ imprisonment.
WM Comment
If you wish to discuss how the new Soft Drinks Industry Levy affects you please contact our Tax team who will be able to guide you through the new legislation.