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Food & Drink update – May 2020

Food & Drink update – May 2020

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Court confirms offering for sale out of date food is a criminal offence

On 6 April 2020, the High Court (in R (on the application of Tesco Stores […]

On 6 April 2020, the High Court (in R (on the application of Tesco Stores Ltd) v Birmingham Magistrates’ Court [2020] EWHC 799) was asked to determine whether offering food for sale that was past its use-by date amounted to a criminal offence under the Food Safety and Hygiene (England) Regulations 2013 (the Food Safety Regulations). The Food Safety Regulations make it a criminal offence to contravene or fail to comply with two pieces of EU food law, the Food Safety Regulation (EC 178/2002) and the Food Information Regulation (EU 1169/2011).

The EU Food Safety Regulation lays down the general principles and requirements of food law and food safety procedures and the EU Food Information Regulation sets out the information that must be provided to consumers (including use-by dates). The judgment hinged on whether, taken together, the two European regulations created an irrebuttable presumption that food past its use-by date was unsafe and that its sale was therefore a criminal offence under the Regulations.

The facts of the case were that Tesco Stores Limited had placed numerous food items on display which had gone beyond their use-by dates. Environmental health officers from Birmingham City Council had visited three Tesco stores between 20015 and 2017 and found items on display with expired use-by dates. Birmingham City Council charged Tesco with 22 offences alleging separate breaches of the Food Safety Regulations. Tesco accepted that all of the items had been offered for sale with expired use-by dates but denied that the foods were ‘unsafe’.

The burden of ensuring food safety is primarily imposed on food business operators (FBOs) which are under a duty to ensure that foods comply with the aspects of food law that are relevant to their activities. Article 24 of the Food Information Regulation states that in the case of foods which, from a microbiological point of view, are highly perishable and are therefore likely after a short period to constitute an immediate danger to human health, a use-by date must be shown and after that use-by date, food will be deemed as being unsafe.

The ‘deeming’ provision in the last sentence of Article 24 was the crux of the case. According to the judgment “it provides the critical link between use-by dates and the application of Article 14 of the Food Safety Regulations and is at the heart of this claim“. The judgment goes on to state that “on its face, it deems food beyond its labelled use-by date to be unsafe, so that, by Article 14 of the Food Safety Regulations it cannot be placed on the market“.

The court’s view was that the legislation was unambiguous, any FBO that places food that was past its use-by date on its shelves was in breach of the Food Safety Regulations and consequently committing a criminal offence.

WM comment

This judgment sets out clearly the interplay between all three pieces of food legislation. Once a use-by date has expired, there will be a presumption that the food is unsafe giving rise to strict liability under the Food Safety Regulations.

Defra announces delay in plastics ban

On 15 April 2020, the Department for Environment, Food and Rural Affairs (Defra) announced that […]

On 15 April 2020, the Department for Environment, Food and Rural Affairs (Defra) announced that the ban on plastic straws, stirrers and cotton buds in England will be delayed by six months as a result of the coronavirus pandemic.

A ban on the disposable plastic items, with exemptions allowing the use of plastic straws and plastic-stemmed cotton buds for those who need them for medical reasons or a disability, was due to start from the end of April 2020 after a consultation revealed public support for the move. A Defra spokesperson said: “Given the huge challenges posed to businesses by coronavirus, we have confirmed we will delay the introduction of our ban on plastic straws, stirrers and cotton buds until October 2020. We remain absolutely committed to turning the tide on the widespread use of single-use plastics and the threat they pose to our natural environment. This ban is yet another measure to clamp down on unnecessary plastic so we can better protect our precious wildlife and leave our environment in a better state for future generations.”

The UK’s delay comes as the European Commission refused to readjust and relax bans on single-use items across the European Union, following pressure from industry groups. The EC’s single-use plastic directive was adopted in June 2019 and introduced bans on a selected number of throw-away items such as cutlery, beverage cups, balloon sticks, straws and cotton bud sticks. However, some industry groups had called for some aspects of the ban to be lifted because of health and hygiene concerns raised during the COVID-19 outbreak.

WM comment

Whilst many food businesses may be grateful of this temporary reprieve, those that trade in Europe should have already adjusted to removing single-use plastics from their products.

FBOs must begin to prepare for a plastic packaging tax

In the March 2020 Budget, the Chancellor announced a new tax that will apply to […]

In the March 2020 Budget, the Chancellor announced a new tax that will apply to plastic packaging produced in, or imported into, the United Kingdom that does not contain at least 30% recycled plastic. Government explains on its website that the policy objective behind the tax is to ‘provide a clear economic incentive for businesses to use recycled material in the production of plastic packaging which will create greater demand for this recycled material and in turn stimulate increased levels of recycling and collection of plastic waste, diverting it away from landfill or incineration‘.

The tax will take effect from April 2022 and draft legislation setting out key features of the tax is promised later in 2020. One such headlined feature is the tax rate which will see businesses whose products have less than 30% recyclable material in their plastic packaging being charged £200 per tonne of packaging.

The use of plastic packaging is widespread in the food and drink sector and so many food and drink manufacturers must start planning now for a fundamental change in how their products are packaged. If you add the plastic packaging tax to the increasing cost of Packaging Recovery Notes and the incoming Extended Producer Responsibility rules, manufacturers are heading towards a perfect storm of rising costs.

Food and drink manufacturers need to examine the sustainability of their products and understand the impact that the upcoming changes to taxation and regulation will have on the profitability of their products. This may involve re-formulation or re-engineering of current products to ensure that they can be made from the maximum recycled content.

WM comment

The overall message is that action is required now to be ready for the changes and to be in a position to take advantage of any opportunities that might arise.

Food industry adds voice to calls for government support for trade credit insurance

Trade credit insurance provides cover for businesses if customers who owe money for products or […]

Trade credit insurance provides cover for businesses if customers who owe money for products or services do not pay their debts, or pay them later than the payment terms dictate. It gives businesses the confidence to extend credit to new customers and improves access to funding, often at more competitive rates.

There are concerns that the expected increase in insolvencies due to the Covid-19 pandemic could see trade credit insurance withdrawn from a range of sectors (including food and drink) resulting in companies having to pay suppliers up front. This will then have the knock on effect of an increase in pressure on the cashflow of companies.

Food and drink manufacturers are key suppliers to the hospitality trade which has been devastated by the coronavirus crisis, and so the food and drink sector is one of those particularly affected by a wider reduction in trade credit cover or an increase in its cost. Andrew Kuyk, the director general of the Provision Trade Federation, has pointed out that a lack of (or prohibitively expensive) trade credit insurance was already affecting those food and drink manufacturers that had lost business with foodservice clients and were trying to forge new commercial relationships.

It is for this reason that Government is being asked to step in and, in effect, underwrite trade credit insurance, to take on some of the cost of insurance payouts in instances where companies fail to pay suppliers.

A spokeswoman for the Association of British Insurers (ABI) explained: “Insurers work closely with their customers, discussing with them where credit limits can be adjusted to help avoid bad debts. But this cannot happen where there is likely to be a sharp rise in insolvencies across many business sectors, such as from Covid-19. This means that the availability of this cover is likely to be severely reduced in the future. We want to avoid this, so we are discussing with the government the scope for temporary state support to ensure that businesses can continue to obtain cover that meets their needs.”

The ABI is urging Government to follow models already put in place in other European countries where companies are being supported by the State to maintain supply chains through a reinsurance scheme. Since many European governments are already underwriting trade credit, the concern is that UK companies will be at a competitive disadvantage without such support.

WM comment

We understand that food and drink industry leaders have been in talks with Government in recent weeks and we will have to wait and see if Government responds to industry pressure.

Food Standards Agency appoints new Chief Scientific Adviser

In April 2020, the Food Standards Agency (FSA) announced that it had appointed Professor Robin […]

In April 2020, the Food Standards Agency (FSA) announced that it had appointed Professor Robin May as its Chief Scientific Adviser. Professor May is Professor of Infectious Disease at the University of Birmingham.

The FSA’s Chief Scientific Adviser is responsible for

the integrity of processes used to source scientific evidence and ensure expert scientific advice is available to the agency;
representing the agency in the community of departmental Chief Scientific Advisors and the wider scientific community; and
championing science within the agency through developing its scientists’ expertise.

Professor May takes up his new position in July 2020.

Guidance on the meaning of ‘allergen-free’ and ‘vegan’ published

In February 2020, the Food & Drink Federation (FDF) published new guidance aimed at educating […]

In February 2020, the Food & Drink Federation (FDF) published new guidance aimed at educating the wider food industry and consumers as to the difference between ‘allergen-free’ claims and vegan claims. As the FDF is at pains to point out, only the ‘allergen-free’ claim contains food safety information.

The FDF hopes that provision of the information and guidance will dispel any misunderstanding that a vegan claim automatically means that a food product is safe and suitable for an allergic consumer.

Heather Hancock, chairman of the Food Standards Agency, was quoted as saying “The FSA warmly welcomes the FDF’s work to improve the clarity of allergen information provided to consumers. Getting this right is essential to ensure that food is safe for people living with food allergy or intolerances. This new guidance makes clear the requirements for free-from claims for egg and milk, and it also contains important clarifications about vegan labelling, which will help prevent shortcuts and other claims inadvertently leading people with food hypersensitivity to make the wrong food choices.”

The guidance sets out the current legal framework that regulates the use of these voluntary claims and how it may develop going forward.

WM comment

You can read the full guidance on the meaning of ‘allergen-free’ and ‘vegan’ here.

Health claims on food and the meaning of ‘accompanying’

A general health claim is one which states, suggests or implies that a relationship exists […]

A general health claim is one which states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health. General health claims can refer to an effect which is generally beneficial, for example “healthy” or “good for you”.

General health claims can only be made if they are accompanied by an appropriate specific authorised health claim. This means that products which do not meet the conditions to make any of the specific health claims on the EU Register will not be able to make a general health claim. These rules are governed by the EU Nutrition and Health Claims Regulation 1924/2006 (the Regulation).

A recent case[1] in Europe has looked in more detail at what the words ‘accompanied by’ actually mean when health claims are made about food products. Specifically the court was asked whether a general health claim was ‘accompanied’ by a specific claim even if the two claims were on different sides of some outer packaging and not clearly connected with an asterisk.

The judgment made it clear that the location of the claims on the packaging must enable the consumer to understand that there is a link between the claims and that the concept of ‘accompanying’ includes both a substantive and a visual dimension. In relation to the visual dimension, there needs to be spatial proximity or, in exceptional circumstances where this is not possible, a visual link, for example by means of an asterisk. The court made it clear that the definition had a wider interpretation than simply ‘next to’ or ‘alongside’.

In other words, if a general health claim and a specific health claim are on different sides of the packaging and so not in the same field of view, and there is no clear reference between the two, the claims would not be considered to meet the criteria to be ‘accompanied’. However, if a link was made, for example by the use of an asterisk, it would then be up to the UK court to decide whether enough of a link had been made in the individual circumstances of the case.

WM comment

In the past, the Advertising Standards Authority has ruled that accompanying specific health claims should appear next to or immediately following the general health claim or be linked by the use of an asterisk. In light of this case, this would appear to still be a good procedure to follow.

[1] Dr Willmar Schwabe GmbH & Co. KG v Queisser Pharma GmbH & Co. KG

New rules for organic food products

Demand amongst consumers for products bearing organic certification is increasing, perhaps as part of the […]

Demand amongst consumers for products bearing organic certification is increasing, perhaps as part of the growing trend of simpler, less processed food and out of concern for the environment. At the same time, the process of obtaining organic certification is about to get increasingly more complicated thanks to some changes to EU rules coming into effect at the start of 2021.

Certification rules

Back in 2007 the EU set out the principles and aims of organic production and how organic products must be labelled. That regulation has been added to over the years by a range of implementing acts on production, distribution and marketing. Together these ‘EU Rules’ maintain the integrity of organic products allowing consumers to trust and believe in the organic credentials of a product.

All organic products sold, produced and pre-packed in the EU must display the approved EU organic logo on its packaging. To be able to use the logo, at least 95% of the agricultural ingredients in the food product must be organic. The remaining 5% can come from non-organic sources subject to various additional controls. In order to use the logo, food business operators must obtain certification from an independent body, such as the Soil Association, confirming that the product complies with the EU Rules. Obtaining certification is not easy and it is about to become even more challenging.

From 1 January 2021, flavourings will be regarded as agricultural ingredients and the maximum amount of non-organic flavourings allowed in an organic product will be 5% by weight of the product. Currently, all types of natural flavourings are permitted in organic food products as they are not classed as agricultural ingredients. In addition, general claims such as ‘natural flavouring’ will not be permitted.

Impact of Brexit

Following the withdrawal of the UK from the EU, the existing EU Rules will cease to apply on 1 January 2021 following the end of the transition period unless a new agreement is reached setting out the future relationship. Unless an agreement is reached to continue the mutual recognition of EU and UK organic accreditation organisations, from 1 January 2021, the EU will only recognise an EU approved independent body. This means that a UK exporter to the EU will be unable to use the EU organic logo without an EU approved independent certifier and conversely, the logo will no longer be able to be used in the UK, unless the UK recognises the EU certifying body.

WM comment

The changes to the EU Rules mean that some organic food products may need to be reformulated to continue to be able to use the EU organic logo. The outcome of the UK’s negotiations with the EU will decide whether the new EU rules will apply in the UK from 2021, but decisions on reformulations and re-certification will need to be made much sooner. Ideally, such a process should be happening now.

US to lift ban on UK beef exports

British beef could soon be exported to the United States following agreement by Government officials. […]

British beef could soon be exported to the United States following agreement by Government officials. It is thought that the export deal could be worth around £66 million to British producers over the first five years of the deal.

The export deal is possible following the agreement by the US of equivalence of standards on the UK’s disease control measures following a three-week inspection in August 2019. The inspections included tours of five beef sites, four pork and lamb as well as several laboratories. The agreement is the crucial step in allowing beef to be exported and means that once the final administrative details have been carried out, British beef will be allowed to be shipped to the US.

WM comment

At Walker Morris we have experts in international trade with experience of export controls and international supply agreements. Please speak to your usual contact within Walker Morris who will be happy to put you in touch with the correct person.

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