Food & Drink update – March 2021


Restricting the promotion of HFSS products
The UK Obesity Strategy was launched by Government in the summer of 2020 and contained […]
The UK Obesity Strategy was launched by Government in the summer of 2020 and contained the following proposals:
- introduction of a new campaign calling for everyone who is overweight to take steps to move towards a healthier weight, with evidence-based tools and apps with advice on how to lose weight and keep it off;
- working to expand weight management services available through the NHS, so more people get the support they need to lose weight;
- publishing a 4-nation public consultation to gather views and evidence on our current ‘traffic light’ label to help people make healthy food choices;
- introducing legislation to require large out-of-home food businesses, including restaurants, cafes and takeaways with more than 250 employees, to add calorie labels to the food they sell;
- consulting on its intention to make companies provide calorie labelling on alcohol;
- banning the advertising of foods high in fat, sugar or salt (HFSS) being shown on TV and online before 9pm and consulting on how to introduce a total HFSS advertising restriction online; and
- legislating to end the promotion of HFSS products by restricting volume promotions such as buy one get one free, and the placement of these foods in prominent locations intended to encourage purchasing, both online and in physical stores in England.
Of all the proposals, the restrictions on HFSS promotions has progressed the furthest. Having decided to legislate to restrict pre-packed HFSS promotions, in December 2020 Government ran another consultation seeking views on how best to enforce the restriction. Draft legislation was proposed to restrict the promotion of multibuy HFSS products as well as restrict the promotion of HFSS products in shop entrances, aisle ends and checkouts for shops over 185.8 square metres (2,000 square feet) and in the equivalent locations online. Online restrictions will include entry pages 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. The restrictions will only apply to pre-packed food and drink so, for example, pre-packed cakes would be caught but not those baked in store.
This most recent consultation was not seeking to revisit policy decisions but to ensure that the legislation was clear and unambiguous and could be implemented effectively once enacted. The consultation, which ended on 22 February, asked for views on:
- the proposed technical definitions of the locations; and
- the text of the draft regulations.
Although responses to the consultation have not yet been published on the gov.uk website, reports in the food and drink press suggest that opposition to the legislation is still strong. One such report suggested that the proposed ban on HFSS promotions could cost the convenience sector more than £90 million. Government has been urged to rethink the size exemptions and instead exempt stores that are less than 3,000 square feet rather than the current 2,000 square feet.
WM comment
The planned restrictions are due to come into force in April 2022 and we will have to wait and see whether Government continues with the legislation as currently drafted. Since Government has been warned by the Food and Drink Federation that there could be court challenges launched by food and drink manufacturers which are opposed to the legislation, it is possible that Government may still have time for a rethink.

Can setting up in Ireland help unblock Brexit-linked disruption to trade?
It has now been a couple of months since the United Kingdom’s new trading regime […]
It has now been a couple of months since the United Kingdom’s new trading regime with the European Union (EU) came into force and while the newspaper headlines may be fading, food business operators (FBOs) are facing long-lasting challenges when it comes to exporting their products to the EU. Essentially, these challenges boil down to organisational issues such as additional bureaucracy, more (and more complex) paperwork and the associated financial cost. While larger FBOs may be able to cope with the added complexity and cost, smaller FBOs may find the increased burden uneconomic.
One solution to the issue may be to set up an operation in a member state of the EU in order to streamline exports to the whole bloc. An obvious choice due to its proximity and common language for such an operation is in Ireland. As recently reported in The Grocer magazine, the Somerset cheese producer, Wyke Farms, has done just that and set up an Irish company to facilitate with its exports to the EU. The operation includes a team of six staff whose job it is to fill out export documentation.
In addition to streamlining the export operation, the Irish company also acts a consolidator for other smaller cheese suppliers. The consolidator model allows smaller FBOs which are struggling with the cost of the additional, upfront paperwork, to use the Irish company to export in bulk from a number of different suppliers. By increasing the volume of products exported, consolidators can minimise the export costs.
WM comment
Time will tell whether this business model becomes popular. If you are interested in exploring the possibility of setting up in Ireland, the International Trade team at Walker Morris would be happy to help.

Could carbon labelling become mandatory?
Less than a decade since Tesco abandoned labelling the carbon footprints of its products, carbon-labelled […]
Less than a decade since Tesco abandoned labelling the carbon footprints of its products, carbon-labelled products are making their way into its stores by a different route. Quorn ® became the first major brand to introduce carbon labelling on its products in 2020. The new labels are aimed at helping consumers understand the environmental impact of their products. Quorn ® claims to be the first meat-free food manufacturer to achieve third-party certification of its carbon footprint figures via the Carbon Trust. Plant-based producer Upfield has since followed suit by announcing plans to introduce carbon labelling across its portfolio by the end of 2021.
This voluntary carbon labelling may however be overtaken by mandatory labelling in the near future. The Food and Drink Federation revealed at its annual convention in December that Government planned to consult on mandatory carbon labelling as part of a post-Brexit review of packaging requirements and labelling. A spokesman for the Department for Environment, Food & Rural Affairs has confirmed that Government is committed to a wide-ranging review of food labelling following the end of the transition period.
WM comment
We will have to wait and see whether or not the outcome of the review includes mandatory carbon labelling. However, since the move towards a net zero target in the UK appears to be gaining momentum, it is not outside the realms of possibility that carbon labelling may yet again rise to the top of the agenda.

Has the incidence of food fraud increased during the pandemic?
At the start of February 2021, Government published a report looking at the impact of […]
At the start of February 2021, Government published a report looking at the impact of the Covid-19 pandemic on the number of reported food fraud incidents. With the effects of the pandemic being felt across the world, it is reasonable to expect that the vulnerability of the global food supply chain to food fraud may be impacted.
The report by the Food Authenticity Network in collaboration with Mérieux Nutrisciences has identified a small increase in official food fraud alerts since the onset of the pandemic (19 more official reports) and a more significant increase in the number of media reports (81 more media reports) in January to June 2020 compared to the same period in 2019).
The Food Authenticity Network, in consultation with its members, concluded that the conditions created by the pandemic have increased food fraud vulnerability but that there was insufficient evidence of ‘dramatic’ increases in specific COVID-19-related food fraud incidents. This study supports that conclusion.
However, getting a true measure of food fraud is always difficult and probably more so during these times of upheaval. Lloyd’s Register warned recently that vigilance against food fraud, for example through carrying out inspections and sampling, is “critically low” worldwide.
Late last year, Interpol and Europol’s joint “Operation Opson” seized more than £29 million worth of potentially dangerous fake food and drink including 3.6 tonnes of unsafe dairy products and 88 tonnes of olive oil, in the process disrupting 19 organised crime groups. When supply chains are disrupted, as they are at the moment, many food business operators are forced to look for new suppliers and this can open the door to unscrupulous traders.
WM comment
It is likely that the true impact of COVID-19 on the incidence of global food fraud will not be known until full resumption of regulatory surveillance world-wide and at this point we may just be seeing the tip of the iceberg.

ASA ruling on McDonald’s advert featuring HFSS products
An advert on television for a McDonald’s beef burger, broadcast on ITV2 at 1:50 pm […]
An advert on television for a McDonald’s beef burger, broadcast on ITV2 at 1:50 pm on a Saturday afternoon during the film Nancy Drew, featured an image of a McDonald’s Double Quarter Pounder with Cheese ® burger together with a voiceover. The advert was cleared by Clearcast with an ‘ex-kids’ scheduling restriction, which meant that it should not be shown in or around programmes made for, or specifically targeted at, children, because it featured a product that was high in fat, salt or sugar (HFSS).
A complaint was made to the Advertising Standards Authority (ASA) against ITV claiming that the advert for an HFSS product had been broadcast during a programme that was directed at or of particular appeal to children, and therefore it had been inappropriately scheduled.
ITV responded by saying that the film was neither targeted at nor principally directed towards children. They said they had assessed the evidence of both the commissioning intention of the film and the Nancy Drew books on which the film was based. They concluded that it would be more likely to appeal to teenagers over the age of 16 years than those under 16. They further explained that they had assessed the content of the film, which included relatively adult themes such as murder, kidnapping and psychological and physical attacks, and concluded that it was not principally directed at or commissioned for under 16s.
Furthermore, ITV said that they had shown the film four times in 2020 and data from those broadcasts showed that under-16s were consistently under-represented in the audience, and was therefore below the threshold at which the film would be considered to appeal particularly to children. From that data, combined with their assessment of the film’s content and commissioning intention, they concluded that it was not commissioned for, principally directed at, or of particular appeal to viewers under the age of 16.
The ASA investigated the advert under BCAP Code rule 32.5 but dismissed the complaint saying that although some of the intended audience would be under 16, the film was also directed at adults and families. In addition, the data clearly demonstrated that the film had not been of particular appeal to audiences below the age of 16.
WM comment
This adjudication by the ASA provides guidance on when HFSS food adverts may be scheduled. It sets out a two-stage test to follow. First, what is the age range that the programme is ‘principally directed or commissioned for’ and second is there any substantiating audience data to back this up?

Will the new immigration policy cause problems in the food supply chain?
According to a new report by a cross-party group of MPs, Government must make changes […]
According to a new report by a cross-party group of MPs, Government must make changes to its new immigration policy, or risk increased food prices. The Environment, Food and Rural Affairs (EFRA) Committee published its conclusion to the ‘Labour in the Food Supply Chain’ inquiry in late December 2020, warning that Government’s plans to restrict UK food producers’ access to workers from Europe risks undermining their competitiveness, as they haven’t been given time to adapt.
Non-UK EEA (European Economic Area) nationals account for the majority of workers in key sectors of the food and drink industry such as meat processing and picking crops. As freedom of movement came to an end on 31 December 2020, the UK food and farming industries must make dramatic changes if they are to be compliant with the new immigration legislation.
Neil Parish MP, Chair of the EFRA Committee, said: “Leaving the EU means that the food supply sector will need to be weaned off its reliance on European workers. This could be a great opportunity for UK workers in the long-term, if employers are forced to improve pay and conditions. But this will take time. If British farmers and food producers can’t get the workers they need, we all risk higher food prices or more cheap imports produced to standards we wouldn’t tolerate here. This transition needs to be properly managed, with appropriate provisions made to prepare British businesses – many of whom have already had an extremely hard year. I urge Government to reflect on this and be ready to adapt their policy in response to the impact it has.”
WM comment
The enacting into law of the Immigration Act in November 2020 meant that a complete shake-up of the way businesses can recruit new staff from the EEA and Switzerland, and move existing staff between the UK and the EEA, was inevitable. Food and drink businesses in both the UK and EEA will now need to adjust rapidly to these changes if they are to remain compliant with their domestic immigration requirements, while meeting recruitment needs. For more detailed information on this topic from our Employment Team please read their article here.

Updated food and drink labelling rules
There have been various updates to food and drink labelling rules since we last wrote […]
There have been various updates to food and drink labelling rules since we last wrote about them (see our article Updated marking, labelling and marketing standards) but the main updates in relation to food placed on the UK market are as follows:
- The use of an EU or Northern Ireland address of a food business on the label will continue to be allowed in the UK until 30 September 2022 for imported food from the EU or Northern Ireland. After that a UK address will be required.
- Food from the UK and sold in the UK can still be labelled as ‘origin EU’ until 30 September 2022. This is not the case for food sold in the EU.
- Food businesses with Geographical Indications (GI) products registered before 1 January 2021, will have until 1 January 2024 to change their packaging and marketing materials to display the new UK GI label. The UK GI logo will be mandatory for UK products registered from 1 January 2021 onwards.
- The EU emblem must not be used on goods produced in the UK from 1 January 2021 unless authorisation from the EU has been obtained.
- The UK and the EU have now recognised each other as equivalent in relation to organic foods until 31 December 2023. This means that UK organic businesses will be able to export goods to the EU and retain the option to use the EU organic logo if they wish. If the EU organic logo is used for UK exports to the EU, both the UK statement of agriculture (‘UK or non-UK Agriculture’) and the EU statement of agriculture (‘EU or non-EU Agriculture’) will need to be used.
WM comment
This is a very detailed area of regulation. If you are in any doubt as to what is required please give one of the Food & Drink team a call.

Government reverses ban on neonicotinoids
In 2018, Government supported new rules which prohibited the outdoor use across the European Union […]
In 2018, Government supported new rules which prohibited the outdoor use across the European Union of 3 neonicotinoids – clothianidin, imidacloprid and thiamethoxam. The ban was brought in due to the harm that the chemicals were causing to bees and other wildlife and the risk that they posed to people and animals. In taking that position, Government made it clear that it would consider emergency authorisations in special circumstances where authorisation for limited and controlled use appeared necessary because of a danger that could not be contained by any other reasonable means. However, the then Environment Secretary, Michael Gove, promised that Government would maintain the restrictions unless the scientific evidence changed.
In January 2021, in response to an application made by the National Farmers’ Union, Government decided to grant emergency authorisation to allow use of a product containing the neonicotinoid thiamethoxam for the treatment of sugar beet seed in 2021. This was in recognition of the potential danger posed to the 2021 crop from beet yellows virus.
Government’s decision, which was published on 8 January, has authorised the use of the neonicotinoid against the following requirements:
- the authorisation appears necessary because of a danger which cannot be contained by any other reasonable means;
- use of the product will be limited and controlled; and
- there are special circumstances.
Emergency authorisations are a derogation from the normal requirements of pesticide authorisation. However, if the above requirements are met then the benefit of granting an emergency authorisation must be balanced against the potential harm from the proposed use of the product, taking into account the proposed conditions. Therefore, the potential risks to people, animals and the environment remain a key part of the evidence that needs to be considered.
The emergency authorisation which has been granted is also regulated by conditions, so as to minimise the risk. For example no flowering crop is to be planted within 22 months of the sugar beet crop and no oil seed rape crop to be planted within 32 months.
Opposition to the emergency authorisation has been raised by various environmental organisations. They argue that the authorisation, which allows “seed-dressing” of sugar beet crops with the neonicotinoids, results in only 5% of the pesticide going in the crop. The rest ends up accumulating in the soil, from where it can be absorbed by the roots of wildflowers and hedgerow plants, or can leach into rivers and streams.
WM comment
Although Government has issued this as an emergency authorisation, it remains to be seen whether similar action will be repeated in years to come.