Food & Drink Update – June 2019


Unfair trading practices in the food supply chain
On 9 April 2019 the EU Council adopted a directive on unfair trading practices in business-to-business relationships in the agricultural […]
On 9 April 2019 the EU Council adopted a directive on unfair trading practices in business-to-business relationships in the agricultural and food supply chain. Once in force, the directive will ban the most obvious unfair trading practices and provide Member States with more effective ways of tackling abuses. The directive should help prevent the weaker bargaining position of small and medium-sized food businesses being exploited by larger operators, such as major processors and retailers.
The new rules will cover micro enterprises, small and medium-sized enterprises (SMEs) and mid-range enterprises that have an annual turnover lower than EUR 350 million. In order to do that, the directive adopts a dynamic approach, according to which smaller operators are only protected against unfair trading practices in cases where these originate from larger businesses. This means for instance that micro enterprises will be protected against SME buyers and SME suppliers will be protected against mid-range buyers and buyers larger than that.
Unfair trading practices such as late payments for perishable products, last minute order cancellations, unilateral or retroactive changes to supply agreements, the misuse of confidential information, and the retaliation or threat of retaliation against the supplier will be completely banned, while other practices will only be permitted if they are provided for in a clear and unambiguous previous agreement between the parties.
Member States will have 24 months after the entry into force of the directive to transpose it into national law, and six more months to apply its provisions.
WM Comment
Whether the UK implements the directive will depend on the outcome and timing of Brexit and so we will monitor developments and report on the directive’s progress in a future update.

Single-use plastic – are you keeping up with the planned changes?
As we reported in July 2018, Government has been considering for some time legislation banning […]
As we reported in July 2018, Government has been considering for some time legislation banning the sale of single-use plastics in the UK amid concerns that their use is causing serious environmental problems.
As the name suggests, single-use plastics are plastic items that are used only once. They are heavily used in the food and drink industry because of the industry’s reliance on packaging and convenience items. Single-use plastic includes things like coffee stirrers, plastic cutlery and plates, bottles, plastic straws, ready-meal packaging and plastic bags.
Following an open consultation, Government announced at the end of May 2019 that it has decided to ban the distribution and sale of plastic straws, drink stirrers and plastic-stemmed cotton buds in England. The ban will take effect in April 2020.
It should be noted that the use of these plastic items is not banned. Restaurants and bars, for example, will not be allowed to display plastic straws or stirrers or offer them to customers but if a customer requests one then they can be provided. The ban does not cover plastic straws, stirrers or cotton buds that are used for scientific or medical purposes.
In a similar move, in March 2019 the European Parliament passed a directive (which gained EU Council approval in May) which introduces a complete ban on many single-use plastics if there is already a non-plastic alternative. The ban will cover plastic cutlery & plates, cups, cotton buds, straws, stirrers and food & drink containers made of expanded polystyrene. Where there isn’t currently a non-plastic alternative, the directive stipulates that there must be a 25% reduction in the use of plastic. Member States will have two years to implement the directive following its publication, which is likely later in 2019.
At the end of May 2019, the European Commission announced that new rules would be introduced in the following areas:
- Single-use plastic: Single-use drinks containers made with plastic will only be allowed on the market if their caps and lids remain attached (or ‘tethered’);
- Obligations for producers: Producers will help cover the costs of waste management and clean-up, as well as awareness raising measures for food containers, packets and wrappers (such as for crisps and sweets), drinks containers and cups, tobacco products with filters (such as cigarette butts), wet wipes, balloons, and lightweight plastic bags. The industry will also be given incentives to develop less polluting alternatives for these products;
- Collection targets: Member States will be obliged to collect 90% of single-use plastic drinks bottles by 2025, for example through deposit refund schemes;
- Labelling requirements: Certain products will require a clear and standardised labelling which indicates how waste should be disposed, the negative environmental impact of the product, and the presence of plastics in the products; and
- Awareness-raising measures: Member States will be obliged to raise consumers’ awareness about the negative impact of littering of single-use plastics and fishing gear as well as about the available re-use systems and waste management options for all these products.
Finally, Government has announced that from April 2022 it will introduce a new tax on the production and import of plastic packaging with less than 30% recycled content. The consultation has just closed so details of the new tax should be published relative soon.
WM Comment
We will keep you updated with the implementation of these proposals into law.

Food company makes a large payment to charity following pollution incident
A major supplier of food and drink ingredients in the Midlands has paid £150,000 to […]
A major supplier of food and drink ingredients in the Midlands has paid £150,000 to charity after pollution entered the watercourse in 2015. Fuerst Day Lawson Limited entered into an Enforcement Undertaking to the Environment Agency after ‘polluting matter’ entered balancing pools and ultimately a tributary of the River Trent in the summer of 2015. The undertaking was accepted by the Environment Agency in September 2018 but has only just been made public.
An Enforcement Undertaking gives companies the chance to provide recompense following a pollution incident and is an alternative to prosecution. It is a civil penalty for a criminal offence. The polluter must accept responsibility for the offence before an Enforcement Undertaking can be entered into but it has several advantages over the traditional prosecution route where fines can be much higher and liability can be imposed directly on officers of the company.
As well as donating £150,000 to the River Trent Trust, the company was also ordered to pay the Environment Agency’s costs of nearly £120,000. The company was also ordered to carry out extensive improvements to its site to prevent similar pollution happening again.
Environment officer Emma Swindail said: “Fuerst Day Lawson offered an Enforcement Undertaking to the Environment Agency, which was accepted in September 2018. The donation to the trust will be used to fund environmentally beneficial projects being carried out in the Stoke-on-Trent area. Enforcement Undertakings are an effective enforcement tool enabling companies to address non-compliance with environmental regulations which provides support for suitable environmental projects.”
WM Comment
The Environmental and Regulatory teams at Walker Morris are experienced at advising food and drink businesses on all aspects of Environmental Law and partner Alison Ogley has particular experience dealing with enforcement action taken by the Environment Agency and other regulators. It is important that food and drink business operators fully understand their environmental responsibilities and understand the risks that they are exposed to.

Mandatory origin labelling for processed foods
Mandatory labelling informing customers of the country of origin of a product has been in […]
Mandatory labelling informing customers of the country of origin of a product has been in force for several years for fresh meat, fruit, vegetables, eggs and fish. However, up until now, no comparative regulations have existed on processed products such as ready meals, canned food or alcohol products (other than wine). That will change on 1 April 2020.
In May 2018, the European Commission adopted new rules on food labelling which state that the origin of the primary ingredient of processed foods must be indicated if it is different from the origin of the food product itself. The new rules come into effect in April next year and will give the consumer clearer information about the origin of food sold on the European market. The rules will apply in the UK even after Brexit, assuming that the UK doesn’t leave the EU in a ‘no-deal’ scenario.
Although the new rules were established last year, the British Retail Consortium (BRC) has warned that food business operators (FBOs) have not grasped the enormity of the changes that are required. The BRC has warned that thousands of processed food and drink labels will need to be changed which will cost the food and drink sector millions of pounds to implement.
To that end the BRC has partnered with the Food & Drink Federation to produce a guidance paper to help FBOs prepare for the changes. The deputy director of food at the BRC, Andrea Martinez-Inchausti, said “Urgent changes are required to more than 50% of all packaged food and drink labels sold in the supermarkets, however many businesses were not aware of the impending rule change”.
WM Comment
All FBOs should be looking at these new labelling requirements and putting plans in place if changes to existing labels are required.

Changes to food labelling approved
Following the UK decision to leave the EU, Government launched a consultation into changes that […]
Following the UK decision to leave the EU, Government launched a consultation into changes that would be required to food labelling regulations to ensure that food labelling standards would be maintained following the UK’s departure, either without a deal or in the absence of a common approach to food legislation at the end of the implementation period.
Most of the changes are minor technical fixes, for example correcting references to the EU or Member States. However, more substantial policy changes were required to:
- The Honey (England) Regulations 2015; and
- The Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007.
Currently the Honey (England) Regulations 2015 require that the packaging for honey must show the country of origin of the honey or, alternatively, where the honey is blended, it can be labelled as ‘EU’, ‘non-EU’ or ‘EU and non-EU’. In future, blended honey will need to bear the label ‘a blend of honey from more than one country‘ or similar wording.
The Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007 implement a range of EU legislation relating to bottled water including strict requirements relating to the necessary composition and characteristics required to allow them to be sold as natural mineral waters. Government has decided to roll over recognition of EU natural mineral waters for six months following Brexit in order to maintain import stability and business continuity and the regulations will be amended to reflect this position.
WM Comment
If you need any help navigating the changes to the food labelling regulations please give a member of the Food & Drink team a call.

Restricting advertisements of HFSS food and drink
As discussed in our February newsletter, Government intends to introduce legislation to restrict promotions of […]
As discussed in our February newsletter, Government intends to introduce legislation to restrict promotions of products high in fat, sugar or salt (HFSS) in England by location and by price in retail settings (such as supermarkets and other shops) and in the out of home sector (such as restaurants, coffee shops, fast food outlets), as well as in any establishment in which food and drink is prepared and sold so that it is ready for consumption by the final consumer.
The aim of the policy is to reduce overconsumption of HFSS products that contribute to children being overweight and obese through: a) restricting volume based types of price promotions of pre-packaged HFSS food and drink products that specifically encourage overconsumption, such as multi-buy offers (e.g. buy one get one free) and free refills of sugary soft drinks; and b) restricting the placement of all HFSS food and drink products (whether pre-packaged or non-pre-packaged) at key selling locations such as store entrances, checkouts and aisle ends which can lead to impulse purchases of HFSS products.
Government also wants to shift the balance of promotions towards healthier options and maximise the availability of healthier products that are offered on promotion, to make it easier for parents to make healthier choices when shopping for their families.
Government intends to lay secondary legislation restricting price and location promotions of HFSS food and drink items in England in late 2019.
In addition, Government is running a second consultation which aims to gather views on how it can reduce children’s exposure to HFSS advertising, again to reduce children’s overconsumption of these products. Government is exploring how to reduce children’s exposure to advertising for HFSS products on TV and online by introducing further advertising restrictions.
The consultation seeks views on options across broadcast and online media in order to reduce children’s exposure to HFSS advertising. The aim is that any future restrictions are proportionate, and targeted to the products of most concern to childhood obesity.
The consultation sets out the following options. In relation to television advertising:
- Option 1 – introduce a 9:00 p.m. – 5:30 a.m. “watershed” on broadcast TV.
- Option 2 – a ladder of advertising restrictions to determine what products can and cannot be advertised between 5:30 a.m. – 9:00 p.m. This would be to reward companies that are reformulating their products or already have healthier products on the market, by giving them advertising freedoms.
- Option 3 – no additional advertising restrictions would be introduced.
In relation to online advertising:
- Option 1 – introduce a 9:00 p.m. – 5:30 a.m. “watershed” online.
- Option 2 – strengthen current targeting restrictions.
- Option 3 – a mixed option whereby different online sub-sectors are treated differently.
WM Comment
The consultation closed on 10 June 2019 and industry feedback seems to be that there will be a ‘watershed’ approach whereby HFSS products will not be allowed to be advertised on television (and possibly online) between 5:30 a.m. and 9:00 p.m. There is also likely to be a ban on using characters and celebrities that appeal to children. We will keep you updated.

DEFRA announces plans to tackle food waste
Government has recently announced its strategy to reduce food waste (“Our Waste, Our Resources: A […]
Government has recently announced its strategy to reduce food waste (“Our Waste, Our Resources: A Strategy for England“) and followed it up with the launch of the “Step up to the Plate Pledge” (the Pledge) which asks FBOs (amongst others) to make commitments to measure and reduce food waste. If you also take into account a recent speech by Michael Gove asking major businesses to accept a challenge to reduce food waste by 50% by 2030, it is clear that food waste is a very hot topic.
The Pledge is the first phase of Government’s wider strategy to eliminate avoidable waste by 2050 and to eliminate sending food waste to landfill by 2030. The second phase of the strategy is to introduce reporting requirements for food waste and setting waste prevention targets. To that end DEFRA has announced that consultations will be held later in 2019 into:
- the introduction of regulations to make annual reporting of food surplus and waste mandatory for larger FBOs; and
- the setting of mandatory food waste prevention targets for appropriate FBOs and the introduction of surplus food redistribution obligations.
Assuming that these reporting requirements and prevention targets are introduced, it is as yet unclear how they will be policed and whether there will be repercussions for FBOs that fail to meet the targets or comply with the reporting requirements. There is also scant detail on the proposed obligations regarding the redistribution of surplus food. However, until the outcome of the consultations is known, FBOs are being encouraged to voluntarily report on their annual food waste.
In addition to the proposed reporting requirements, prevention targets and food surplus obligations, Government has also published its “Statutory Guidance on Food & Drink Hierarchy” effective from the start of 2019 which sets out the following prioritised list of options which FBOs should adopt when managing surplus food and waste:
- prevent surplus and waste
- redistribute surplus food
- make animal feed from former food
- recycle food waste – anaerobic digestion
- recycle food waste – composting
- recycle food waste – landspreading
- incinerate to generate energy
- incinerate without generating energy
- send to landfill or sewer
The guidance is statutory (and therefore binding). FBOs should apply the options in the order that they are listed however the extent to which compliance with the hierarchy is achieved falls to the FBOs themselves. Government will review the implementation of the hierarchy in 2020.
WM Comment
Government proposals to reduce food waste will have significant implications for the food and drink industry, particularly if non-compliance with reduction targets attracts enforcement and sanctions. FBOs would be well advised to start planning now rather than wait for the proposals to become law.

Size of deposit set for Scottish Deposit Return Scheme
Scotland is planning a deposit return scheme which will include aluminium and steel cans as […]
Scotland is planning a deposit return scheme which will include aluminium and steel cans as well as drinks containers made of glass and polyethylene terephthalate (PET) plastic as part of plans to combat climate change. The scheme is based on successful international equivalents and will be widely accessible, with all shops which sell drinks offering deposit refunds to customers. The amount of the deposit will be 20p.
Scottish Environment Secretary Roseanna Cunningham said:
“Scotland was the first part of the UK to commit to a deposit return scheme as part of our wider efforts to prevent discarded drinks containers from ending up in our streets and seas, and is now the first to outline its design – one that is ambitious in scale and scope, and which gives the people of Scotland a clear and straightforward way to do their bit for the environment.”
WM Comment
We will keep you updated regarding the scheme’s implementation.