Food & Drink update – June 2021


Round-up of recent ASA cases
There have been several complaints to the Advertising Standards Authority (ASA) recently involving the food […]
There have been several complaints to the Advertising Standards Authority (ASA) recently involving the food and drink sector.
RR Whiskey Limited
Two adverts for River Rock whisky were posted on social media and the internet on 8 January 2021. The first advert, a post on River Rock’s Facebook page, was headed “Whisky & the Wilderness”. The advert stated: “What better way to celebrate the launch of batch #2 than with a whisky tasting at 3500ft?”. The text was accompanied with images of people mountaineering and a bottle of whisky was shown with the mountaineers. The second advert, a page on the company’s website stated: “What better way to mark the launch of River Rock batch #2 than by summiting 3500 feet for a wild whisky tasting with good friends?”.
A member of the public complained on the grounds that the adverts were irresponsible because they linked alcohol with an activity or location in which drinking would be unsafe.
The ASA upheld the complaint. The CAP Code states that adverts must not link alcohol with activities or locations in which drinking would be unsafe. The CAP Code permits alcohol adverts to feature sporting or physical activities, but states that adverts must not imply those activities were undertaken after the consumption of alcohol. The ASA noted that whilst neither advert showed anyone drinking alcohol, it considered consumers were likely to interpret the images to mean that whisky had been consumed in the mountains. The ASA considered drinking alcohol at altitude would be unsafe and therefore the adverts had breached the CAP Code.
Not Guilty Food Co Limited (trading as The Skinny Food Co)
A Facebook post in June 2020 for The Skinny Food Co featured an image of a man holding four spice mixes. On each of the product labels text stated: “Skinny Spices”, alongside the names of each mix. The post included a caption that stated “Have you checked out our new Skinny Spices?” underneath which a list stated “Natural Ingredients”, “Enhances Flavour”, “Vegan”, “Zero teaspoons of added sugar”.
The advert was the subject of two complaints which challenged whether the claim “Skinny Spices” was subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on food (the Regulation) and therefore breached the CAP Code.
The ASA upheld the complaints. The ASA noted that according to the Regulation only health claims listed as authorised on the EU Register of Nutrition and Health Claims (the EU Register) were permitted on foods in marketing communications. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health. Advertisers must show that health claims were authorised on the EU Register in relation to the relevant foodstuffs contained in that product and that they complied with the related conditions of use.
The ASA considered that on balance, in the context of food, the claim “Skinny Spices” would be understood by consumers as linked to weight loss, or helping to maintain weight when compared to alternative products, and that consuming products in the Skinny Spices range would therefore have those effects. The claim “Skinny Spices”, in the context of the advert, was therefore a health claim for the purposes of the CAP Code. The ASA therefore concluded that the advert breached the CAP Code.
JST Nutrition Limited
Seven posts appeared on Jodie Marsh’s Instagram account between 28 December 2020 and 11 January 2021 for JST Nutrition Ltd, a food supplement retailer. The posts made various claims about the health giving properties of three food supplements, “tonex”, “neptox” and “hebex”.
The complainant challenged whether the health claims complied with and/or breached the CAP Code and, in addition, the ASA challenged whether the adverts were obviously identifiable as marketing communications.
The ASA ruled that all complaints were upheld. As in the ruling against Skinny Food Co, the ASA noted that according to EC Regulation 1924/2006 on nutrition and health claims made on foods, which was reflected in the CAP Code, only health claims listed as authorised on the EU Register of nutrition and health claims were permitted in marketing communications published on or before 31 December 2020. From 1 January 2021, only health claims authorised on the Great Britain nutrition and health claims register were permitted in marketing communications. It held that the Instagram posts breached CAP Code in that the health claims for “tonex” and “hebex” were not listed on either register.
Finally the CAP Code states that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context. The ASA noted that the posts did not feature a label such as “#ad” identifying them to consumers as marketing communications and so it was concluded that the posts were not obviously identifiable as marketing communications and as such breached the CAP Code.
WM comment
Note that the complaints were assessed according to the regulations in force at the time that the adverts were posted. Pre-Brexit, health claims in marketing communications needed to be listed as authorised on the EU Register of nutrition and health claims. Any similar complaints would now be adjudged in relation to the Great Britain nutrition and health claims register which came into effect on 31 December 2020.
If you need any help navigating the specifics of the CAP Code please give your usual contact within the Food and Drink team a call and we will put you in touch with one of our experts.

Mandatory calorie labelling to come into force in 2022
The Calorie Labelling (Out of Home Sector) England) Regulations 2021were passed by Parliament on 27 […]
The Calorie Labelling (Out of Home Sector) England) Regulations 2021were passed by Parliament on 27 July 2021 and require restaurants, cafés and takeaways in England with 250 or more employees to list calorie counts on non-prepacked food and soft drinks. All calorie information will need to be displayed at the point at which the consumer chooses what food to buy, such as physical and online menus and delivery platforms.
The information which must be displayed is:
- the energy content of a single portion of food in kilocalories or, if the item purchased by the customer has been prepared by the business for consumption by more than one person, of the whole item;
- the size of the portion to which the information above relates, or the number of people for whom the item has been prepared;
- the statement that “adults need around 2000 kcal a day” (unless the menu only includes food for children).
The regulations include a provision allowing customers to receive a menu without calorie labelling if expressly requested by the customer.
The following businesses are exempt from the regulations:
- educational institutions;
- work-place canteens;
- military establishments and criminal justice accommodation;
- hospitals;
- care homes and other social care settings.
WM comment
The regulations come into force in April 2022. Catering businesses need to begin to plan for the changes.

Restrictions on the promotion of HFSS products confirmed
The Queen’s Speech on 11 May 2021, confirmed Government’s intention to introduce a total ban […]
The Queen’s Speech on 11 May 2021, confirmed Government’s intention to introduce a total ban on online advertising and a 9.00 pm watershed on TV advertising for food and drink products high in fat, salt and sugar (HFSS). The aim is for the legislation to take effect from April 2022 and will take the form of the Health and Care Bill 2021-22. Although the details are not yet available, restrictions are likely to include online pages (for example homepages of a retailer’s website or grocery page, landing pages when the customer is browsing other categories of food and pages where customers view their shopping basket or proceed to payment). In previous Government consultations, the restrictions have been mooted to only apply to pre-packed food and drink so, for example, pre-packed cakes would be caught but not those baked in store. Paid for displays, text messages and web searches for HFSS products are also likely to be prohibited. Whilst the specific details of the legislation are still awaited, Government has announced that the Department of Health 2004 to 2005 Nutrient Profiling Model is likely to be used to define whether or not a product is HFSS.
The advertising industry has been fighting against these restrictions for years, arguing that the industry’s contribution to obesity is minimal. The director general of the Incorporated Society of British Advertisers, Phil Smith, said: “A blanket ban does next-to-nothing to tackle obesity whilst damaging business, risking jobs and restricting adult freedom of choice. If, after months of engagement, Government has chosen to ignore more sophisticated, better targeted, cheaper and more proportionate ways to protect children online, then business will be forgiven for thinking that this Government cares less for serious policy than it does cheap headlines.”. The Advertising Association argues that Government’s own research says that a total online ban will reduce a child’s calorie intake by just 2.84 calories a day – although this figure reflects the effect of displacing the advertising to other media, rather than banning it altogether. However, these arguments appear to have fallen on deaf ears as the prohibition is now less than 12 months away.
In addition to the advertising restrictions, Government has also confirmed that legislation will be passed in this Parliamentary session to restrict promotions of HFSS products. The legislation will come into force in April 2022 and, although the draft legislation has yet to be published, the details are known since it was subject to a consultation in December 2020. Restrictions will cover multi-buy offers and product placement within stores which you can read about in our last article here.
WM comment
The restrictions are due to come into force in April 2022 and so food and drink businesses have less than a year to adapt to the changes. It is crucial to start planning for these changes now as they are clearly not going to go away no matter how unpopular they are within the industry.

Low and no alcohol product innovation continues to grow
With the present boom in the popularity of low- or no- alcohol products, we are […]
With the present boom in the popularity of low- or no- alcohol products, we are seeing more and more brands join the market and existing brands diversify their offering into this space. Given its popularity, there is no doubt there are huge opportunities for growth and revenue. However, there are areas that manufacturers, food business operators and marketers should be mindful of before launching their new products.
Here are some helpful tips:
- Take care to avoid similarity with protected products and consider potentially relevant protected geographical indications or protected designation of origin.
- The descriptor ‘alcohol free’ should only be used on drinks from which the alcohol has been extracted if it contains no more than 0.05% ABV. Where a product has had the alcohol extracted but it remains above 0.05% ABV but at or below 0.5% ABV, the descriptor would be ‘de-alcoholised’. Marketers should, however, take care not to mislead consumers by implying that a product contains no alcohol at all if it contains any.
- Health claims for alcoholic products are prohibited and the types of nutrition claim that can be made for an alcoholic product are also limited. Nutrition claims are only acceptable if referring to low-alcohol levels, the reduction of the alcohol content, or the reduction of energy content.
- Nutrition claims which have the same meaning to the consumer as the relevant permitted claims, e.g. “light” (if referring to reduced alcohol content) or “reduced calories” may be acceptable, provided they comply with the relevant criteria for use.
- Any environmental/green claims (i.e. carbon free, eco-friendly, sustainable) need to be properly substantiated to ensure that they do not mislead consumers.
- Food businesses should ensure that no/low alcohol products are properly labelled with mandatory food information, unlike alcoholic drinks with more than 1.2% by volume of alcohol, an ingredients list may be required. Both product lines will however need to bring allergens to the attention of the consumer.

Food safety’s watershed moment – retailer on receiving end of highest recorded food safety fine for the sale of food past its use-by-date
In April 2021, Tesco Stores Limited was fined £7.56 million in Birmingham Magistrates Court for […]
In April 2021, Tesco Stores Limited was fined £7.56 million in Birmingham Magistrates Court for selling food past its use-by-date. The fine, followed a guilty plea in respect of 22 charges under regulation 19 of the Food Safety and Hygiene (England) Regulations 2013 (2013 Regulations). The offences related to own brand and third party branded products which remained on sale past the marked use-by-date at three different stores. The prosecution arose out of an investigation by Birmingham City Council’s Environmental Health Department following the receipt of complaints from members of the public.
Tesco had previously sought an application for judicial review on the issue of whether expert evidence in relation to the substantive ‘safety’ of the food was admissible. Tesco had accepted that it had items displayed for sale past their use-by-date but that such items were not unsafe on the basis of expert evidence which attested to the fact that the food would in fact have been safe to eat. The District Judge at first instance had held that such evidence was not admissible finding that there is an automatic presumption that food past its use-by-date is unsafe and expert evidence could not displace such a presumption.
Under regulation 19 of the 2013 Regulations it is an offence to fail to comply with specified obligations under European Law (which has subsequently been retained post Brexit) and this includes placing on the market food that is unsafe, which must be read in conjunction with other relevant food law which sets out the information to be included on food labelling, including mandatory provisions relating to the ‘use-by’ date for foods that are highly perishable and likely after a short period to constitute an immediate danger to human health. After the ‘use-by’ date such a food will be deemed unsafe.
Why does the case matter?
- The case confirms that food past its use-by-date will be unsafe and placing on the market such foods will constitute an offence to which, if charged, a defendant would need to rely on a due diligence defence. This in itself is significant in the context of large retailers and food businesses who largely rely on employees to manage vast amounts of dynamically changing stock. It is highly likely that the predicate offence (i.e. the sale or holding for sale of food past its use-by-date) is not an exceptionally rare occurrence across the country.
- The fine is a cautionary tale (or perhaps more accurately a reminder, given the trend for fines in relation to regulatory breaches) that the Sentencing Guideline for health and safety offences, corporate manslaughter and food safety and hygiene offence (Guidelines) can lead to high fines and for organisations with turnovers in the hundreds of millions, such fines can be very significant. Cases like the Tesco one will often relate to multiple products and an offence will be committed in respect of each product. On this very basis, for those convicted, fines can escalate very quickly.
- The total fine handed down to Tesco exceeded that of the fine for the highest fine in relation to breaches of health and safety law sentenced under the Guidelines which remains the £5 million handed down to Merlin Attractions following the well-publicised incident at Alton Towers. This also puts the fine above arguably more egregious breaches of health and safety culminating in a fatal accident. This may set the benchmark for both food safety and hygiene and health and safety offences for other large organisations. On this basis, it is very possible that arguably more ‘serious’ food safety failures with more severe outcomes (e.g. undeclared allergens or food sold with contaminants/foreign bodies) may attract even more significant penalties.
- For retailers and other food businesses, this case is a salutary reminder of the importance of putting in place robust systems and training as well as pro-active monitoring and auditing of those procedures to ensure that out of date food is not placed on the market.

FSA publishes new Food Law Code of Practice
In March 2021, the Food Standards Agency (FSA) published the revised Food Law Codes of […]
In March 2021, the Food Standards Agency (FSA) published the revised Food Law Codes of Practice (the Codes) and Food Law Practice Guidance and introduced a Competency Framework in England and Northern Ireland, following consultations in November and December 2020. The Codes provide statutory guidance to local authorities and port health authorities on the approach they should take to regulate food businesses. You can access the Codes here.
The key changes to the Codes include:
- modernisation of the baseline knowledge, skills, and experience requirements to enable a wider cohort of environmental health and trading standards professionals in England and environmental health professionals in Northern Ireland to undertake official food controls and other official activities, providing they can demonstrate they are competent;
- replacing the existing competency requirements in the Codes with a Competency Framework that defines competency by activity rather than by role;
- introducing a provision to enable the FSA to be more responsive in issuing advice, to enable local authorities to depart legitimately from the Code, in limited circumstances.
The FSA stated that it had reviewed and revised the Codes to ensure that they reflect current priorities, policy, and legislative requirements and so that delivery of food control activities by local authorities and port health authorities remains effective, consistent, and proportionate.

Food Labelling – an update
Food business operators (FBO) can continue to use an EU, GB or Northern Ireland (NI) […]
Food business operators (FBO) can continue to use an EU, GB or Northern Ireland (NI) address for the FBO on pre-packed food sold in Great Britain (England, Scotland and Wales) until 30 September 2022. From 1 October 2022, any pre-packaged food sold in Great Britain requires a UK FBO or UK based importer’s name and address. In due course, non-UK businesses will need to consider putting in place arrangements with a UK based importer or setting up a UK business to fulfil this function.
From 1 January 2021 it has been the case that all pre-packed food placed on the EU market from the UK must have an EU or NI address for the FBO or an EU or NI importer to ensure compliance with EU Regulation 1169/2011 on food information to consumers (FIC). In order to ensure compliance, GB food businesses need to have arrangements with an EU based importer (either externally or part of its corporate structure) or set up an EU/NI based entity to carry out this role.
EU Emblem
The EU emblem cannot be used on goods produced in Great Britain without authorisation.
Health and identity marks
Health and identity marks set out the place of origin and approval number of the registered FBO. Government has extended the date for implementation of this change from 1 January 2021 to 30 September 2022 for goods in the GB market. Goods sold in NI and/or the EU have, however, been required to apply the new marks since 1 January 2021.
Country of origin
It is mandatory to label products such as meat, fish, seafood, eggs, honey, etc. with their country of origin where they are sold to the final consumer or mass caterers. Where failing to provide a country of origin may mislead consumers, an FBO must label products with the country of origin. Countries of origin might also be used as a marketing tool (e.g. Made in GB).
Where the country of origin of the primary ingredient differs from the declared/implied country of origin, an FBO must include the country of origin of the primary ingredient of the product (e.g. where one of the ingredients of a “best of British fish” originates from France, an FBO must state where the primary ingredient came from. Since 1 January 2021, food from GB and sold in the EU must not be labelled as ‘origin EU’ unless it is either from or sold in Northern Ireland. Food from and sold in GB can be labelled as ‘origin EU’ until 30 September 2022.
Organics
The UK-EU Trade and Cooperation Agreement provides for an equivalence agreement between the UK and EU, i.e. products certified as organic in one market will be recognised as organic in the other. The EU accepts the placing on the EU market of an agreed list of products that meet UK laws and are accompanied by a certificate of inspection issued by a recognised UK control body, and vice versa. Organic products may bear the EU’s organic logo, any UK organic logo or both logos. If an FBO includes the EU organic logo for GB exports to the EU, it must include the EU statement of agricultural origin (‘EU’ or ‘Non-EU Agriculture’). There is no need for the GB statement of agricultural origin.
For the GB market from 30 September 2022, the following statements of agriculture are mandatory:
- ‘UK Agriculture’ – where 98% of the ingredients are produced in the UK
- ‘UK or non-UK Agriculture’ – where the product is produced with ingredients grown in and outside the UK
- ‘Non-UK Agriculture’ – where 98% of the ingredients are produced outside the UK
Protected geographical food and drink names (GI)
All product registered in the UK must use the rules specified for the new UK GI logos. Businesses have until 1 January 2024 to change the EU GI logo to the new UK logo for products registered under the EU scheme before 1 Jan 2021.

Delay to the implementation of DRS in the UK
A deposit return scheme (DRS) will not be in place in England, Wales and Northern […]
A deposit return scheme (DRS) will not be in place in England, Wales and Northern Ireland until late 2024 at the earliest – six years after it was announced by Government as a key environmental policy. Instead a second consultation was announced in March 2021 “to explore further what the continued appetite is for a deposit return scheme in a ‘post-Covid’ context“.
A DRS was first announced in 2018 by the then Environment Secretary to cut the litter polluting the land and sea by returning a small cash sum to consumers who return their bottles and cans. It came after years of campaigning by environmental groups. Government’s manifesto promise in 2019 was to introduce a deposit return scheme to incentivise people to recycle plastic and glass and the first consultation was met with a high level of support for the scheme. But after years of discussions the new consultation document published by the Department for Environment, Food and Rural Affairs, showed that Government was no closer to deciding on what kind of deposit scheme should be in place.
WM comment
The second consultation ended on 4 June 2021 and we will keep you updated with any decisions which are made.

FSA launches food fraud tool
The Food Fraud Resilience Self-Assessment Tool is a new on-line tool launched by the Food […]
The Food Fraud Resilience Self-Assessment Tool is a new on-line tool launched by the Food Standards Agency (FSA) which guides food business owners and employees through a series of questions designed to help them identify the risk to their business from food crime. It also outlines steps that they can take to mitigate the effects of food crime. Businesses can complete the assessment tool anonymously or choose to share their details with the FSA to receive tailored advice and support.
The tool has been developed by the National Food Crime Unit (NFCU), a dedicated law enforcement function of the FSA. The NFCU works with the food industry to identify threats and collaborates with partners to tackle them.
Food crime is defined by the FSA as serious fraud and related criminality in food supply chains. The definition also includes activity impacting on drink and animal feed. On its launch, Darren Davies head of the NFCU, said: “The pandemic has been incredibly challenging for the food industry, but we know the damage that food crime can do both to a business’s reputation and to consumer health. While the UK has some of the safest and most authentic food in the world, it’s as important as ever for businesses to remain vigilant to the threat posed by criminals. Vulnerability can exist at any place along the route from farm through to fork so I would encourage businesses of all size across the industry to make use of this free tool.“.
WM Comment
You can access the Food Fraud Resilience Self-Assessment Tool here.

Oatly sues for trademark infringement
Oatly UK is taking fellow oat drinks supplier Glebe Farm Foods Limited to court, claiming […]
Oatly UK is taking fellow oat drinks supplier Glebe Farm Foods Limited to court, claiming the Cambridgeshire-based company’s PureOaty brand infringes its Oatly and Oat-ly! trademarks. The world’s largest oat drink company is calling for PureOaty’s packaging to be altered claiming that the brand’s packaging is too similar to its own.
Judgment in the infringement case is expected in July 2021.