Food & Drink Update – November 2019


Minimum alcohol pricing in Wales
The National Assembly for Wales has laid the Public Health (Minimum Price for Alcohol) (Minimum […]
The National Assembly for Wales has laid the Public Health (Minimum Price for Alcohol) (Minimum Unit Price) (Wales) Regulations 2019. These regulations will introduce a minimum unit price for alcohol of 50p from 2 March 2020.
WM comment
The draft regulations were debated and approved on 12 November 2019.

Food recalls due to undeclared allergens jump to a five-year high
Food recalls relating to undeclared allergens are at a record high having jumped 20 per […]
Food recalls relating to undeclared allergens are at a record high having jumped 20 per cent. in the past year. Recalls happen when food products which are already in the shops are found to contain undeclared traces of allergens.
Food businesses must tell the public if they use any of the 14 key allergens as ingredients in the food and drink they provide. Food businesses include restaurants, cafés and takeaways, and businesses that produce, manufacture or pre-pack food. The allergens must be emphasised within the ingredients list of pre-packed food or drink. This can be done, for example, using bold, italic or coloured type, to make the ingredients easier to spot.
The 14 allergens that need to be declared are:
- celery
- cereals containing gluten – including wheat, rye, barley and oats
- crustaceans – such as prawns, crabs and lobsters
- eggs
- fish
- lupin
- milk
- molluscs – such as mussels and oysters
- mustard
- tree nuts – including almonds, hazelnuts, walnuts, brazil nuts, cashews, pecans, pistachios and macadamia nuts
- peanuts
- sesame seeds
- soybeans
- sulphur dioxide and sulphites (if they are at a concentration of more than ten parts per million)
If there is a risk of a food product being affected by allergen cross-contamination, the label should include a phrase such as ‘may contain’ to warn customers that there could be small amounts of an allergen in a food product. This can happen when the allergen has entered the product accidentally during the production process. Precautionary allergen labelling should only be used after a thorough risk assessment. It should only be used if the risk of allergen cross-contamination is real and cannot be removed.
A review of the Foods Standards Agency website shows how prevalent food recalls due to undeclared allergens are. In October and November alone, there were 14 allergen recalls by companies such as La Boulangere, Harvey Nichols, Costa Coffee, Lidl, Spartan Protein and the Co-op. Perhaps because of the prevalence of recalls and also the devastating effect on individuals when allergens are not declared, from October 2021, new food regulations will come into effect which means that food which is ‘pre-packed for direct sale’ will need to have a label with a full ingredients list with allergenic ingredients emphasised within it.
WM Comment
Food labelling and, in particular, allergen labelling is a complex area heavily governed by regulation. If you need help navigating them and preparing for the new regulation in 2021 please get in contact with Stuart Ponting or anyone in the food group at Walker Morris.

High Court sets out scope of FSA’s powers under the meat regulations
In the recent judicial review, R (on the application of Agro Foods (Ashford) Ltd) v […]
In the recent judicial review, R (on the application of Agro Foods (Ashford) Ltd) v Food Standards Agency [2019] EWHC 2718, the High Court had to look at the remit and scope of the power of the Food Standards Agency (FSA) under the Meat (Official Controls Charges) (England) Regulations 2009 (the Regulations).
Food business operators need statutory approvals and official controls from the FSA in order to lawfully operate establishments such as slaughterhouses. The FSA is permitted, pursuant to regulation 3(4) of the Regulations, to impose and collect charges for providing the official controls. The case is about the scope of the FSA’s powers in circumstances where charges have gone unpaid and a court judgment for their recovery has been obtained. It raises a question of statutory interpretation concerning regulation 4 of the Regulations, which provides as follows (with underlined emphasis added):
Regulation 4. Withdrawal of controls – Where the FSA has had judgment entered against an operator of any premises for any sum which is payable to it under regulation 3(4) and the operator fails within a reasonable time thereafter to satisfy the judgment, the FSA may (regardless of any other legal remedy open to it) refuse to exercise any further controls at those premises until the judgment has been satisfied.
The issue which the judge had to determine was whether the words “at those premises” confine the power so that the FSA is entitled to refuse to exercise further controls only at premises where the current operator is the same operator against whom “the judgment” was entered? Or is the power in that respect unconfined so that, in an appropriate case, the FSA is entitled to refuse to exercise further controls even though there is a successor operator against whom no judgment has been entered?
Charing Meats Limited (CML) was the original operator of the slaughterhouse. The FSA provided official controls from December 2015 and charges were notified to CML. CML failed to pay and eventually in 2018 judgment was entered against the company in the sum of £85,000. CML ceased trading and the assets were sold to Agro Foods (Ashford) Limited, which was in effect a ‘phoenix’ company which was controlled by the same director, Mr Ahmed. The FSA withdrew controls from Agro Foods claiming that it could refuse to exercise any further controls ‘at those premises’ until the judgment against CML was satisfied. The issue was whether the words ‘at those premises‘ confined the FSA’s powers to withdraw controls where the current operator was the same operator against whom the judgment had been entered or whether the power was unconfined.
The court found that Regulation 4 should be interpreted objectively, starting with the ordinary and natural meaning of the words. ‘At those premises‘ meant the same physical facility and so withdrawal of controls could be applied to a successor operator. The court stated “it is relevant to have in mind the consequences of the competing interpretations. If regulation 4 were confined in its application to cases where the defaulting operator – against whom judgment has been entered – remains in operation and seeks continued official controls, the Agency would be at the mercy of ‘phoenix’ arrangements by which a controlling person behind a corporate entity could acquire a new corporate entity and insist on continuation – provided only that hygiene standards were met – leaving past charges for official controls unsatisfied.”
WM comment
The FSA will welcome the findings of this judicial review as it establishes that its powers are unconfined in relation to charging for control provisions.

Consultation on the Industrial Energy Transformation Fund
The Department for Business, Energy and Industrial Strategy (BEIS) has launched a consultation asking for […]
The Department for Business, Energy and Industrial Strategy (BEIS) has launched a consultation asking for input on the final design of the £315 million Industrial Energy Transformation Fund (Fund), the aim of which is to help industry improve energy efficiency and reduce carbon emissions.
The consultation on the Fund, which closes on 21 November 2019, is part of a wider strategy to deliver the UK’s legally binding commitment to reduce or offset greenhouse gas emissions to net zero by 2050, the proposals include supporting energy efficiency and decarbonisation technologies.
According to the consultation, the Fund will support businesses with high energy use to:
- cut their bills and emissions through increased energy efficiency
- reduce their emissions by decarbonising industrial processes.
The consultation outlines Government’s proposals in relation to:
- who will be eligible to apply to the Fund
- which technologies will be supported
- the provision of support for feasibility studies
- the different types of funding support available
- the delivery of the Fund.
The Fund has significant applicability to the food and drink sector. Improvements to compressed air systems, refrigeration and storage and process optimisation are all offered as potential examples of grant applications within the food and drink sector. It is also proposed that the Fund provides finance for Feasibility and Front-End Engineering and Design (FEED) studies for projects deploying such technologies and for providing expertise for such studies.
The consultation recognises the potential for significant gains in the food and drink sector where two-thirds of energy use is from natural gas. Replacing natural gas with low carbon fuels, using heat pumps to support low temperature processes, and introducing technologies such as mechanical vapour recompression, ultraviolet pasteurisation or sterilisation and infrared heating, could all deliver efficiencies.
Applications for phase 1 of the Fund open in the summer of 2020 and a minimum award of £1 million per project is proposed.
WM comment
We encourage all our food and drink clients to review the consultation. Please contact Richard Naish, Ben Sheppard or your usual Walker Morris contact for further information or advice on the Fund and how you can procure and invest in energy efficiency and carbon reduction projects which will add long-term value to your business.

Vegetarianism is not a protected belief
The Equality Act 2010 makes it unlawful to discriminate against a worker because of a […]
The Equality Act 2010 makes it unlawful to discriminate against a worker because of a ‘protected characteristic’. The Equality Act sets out nine categories of protected characteristics, one of which is ‘religion or belief’ with ‘belief’ being defined as ‘any religious or philosophical belief’. There is no statutory definition of ‘philosophical belief’ but case law has suggested that it has to be more than an opinion or viewpoint. It must be a belief ‘as to a weight in substantial aspect of human life and behaviour’, it must reach a certain level of cogency, seriousness and cohesion and must have a similar status or cogency to religious belief.
In the employment tribunal case of Mr G Conisbee v Crossley Farms Limited and others, Mr Conisbee claimed that he had been discriminated against on the grounds of religion and belief, his belief being that of vegetarianism. The tribunal was asked to rule at a preliminary hearing as to whether vegetarianism qualifies as a religion or belief.
After hearing arguments from both sides, the tribunal ruled that vegetarianism does not qualify as a religion or belief as defined in the Equality Act 2010 and therefore the employee could not continue with his claim for discrimination. The tribunal concluded that it “did not seem to be a belief capable of protection”. It is not enough to have an opinion based on some real, or perceived, logic. The tribunal endorsed the respondent’s argument that vegetarianism is not about human life and behaviour, it is a life style choice which cannot be described as relating to weight and substantial aspect of human life and behaviour.
WM comment
Although this is a first instance decision and therefore doesn’t have to be followed by other tribunals, it contains an interesting debate as to whether vegetarianism could ever be classed as a belief. In particular the distinction between vegetarianism and veganism was highlighted with the implication being that veganism was more likely to be classed as a belief because vegans are more consistent in the practices that they adopt.

Chief Medical Officer’s report on childhood obesity is published
On 10 October 2019, the report Time to Solve Childhood Obesity, an independent report by the Chief […]
On 10 October 2019, the report Time to Solve Childhood Obesity, an independent report by the Chief Medical Officer, Professor Dame Sally Davies, was published. The report emphasises the serious impact that obesity has on children’s health and the need for bold action in order to achieve Government’s ambition to halve childhood obesity by 2030. The report candidly admits that in England, Government is nowhere near achieving this goal.
The report highlights that:
- children have a right to live in a healthy environment, children’s health, not companies’ profits, must be at the forefront of Government policy
- being overweight or obese in childhood has profound impacts on the health and life chances of children
- children living in the most deprived areas are disproportionately affected
- the environment has slowly changed, making it harder for children to be healthy
- action is needed across industry and the public sector
- politicians have the opportunity to support children to be healthy
- public want politicians to take decisive action to reverse the rise in obesity.
Professor Davies urges Government to take action to ensure that children: (i) have access to healthy and affordable food; (ii) are protected from marketing of unhealthy foods; and (iii) have the opportunity to run, bike and play safely. Furthermore the report sets out ten principles which need to be followed to achieve those actions. They are:
- Rebalance the food and drinks sold to favour healthy options, through regulation
- Allow children to grow up free from marketing, signals and incentives to consume unhealthy food and drinks
- Introduce innovative policies that find the win-wins for children’s health and the private sector (for example the continuation of private sector sponsorship of sporting events but only allow advertising and sales of their healthy products on site)
- Invest in and design the built environment to create the opportunities for children to be active and healthy
- Take action to improve exercise and healthy weight in pregnancy, breastfeeding rates, and infant feeding
- Ensure schools and nurseries play a central role, supported by Ofsted monitoring
- Ensure our NHS and health sector workforce can deliver what our children and families need to prevent, manage and treat obesity, including having conversations about weight and tackling weight-related stigma
- Make better use of data to guide practice
- Protect and prioritise our children’s health and rights while making trade deals. Their health and a healthy environment must come above company profits
- Develop the evidence base to inform practice and policy.
WM Comment
As can be seen from the list above, many of the guiding principles involve additional regulation on the food and drink industry and new restrictions, for example, on advertising. We will keep you updated with any developments that flow from the report.

Consultation on safety protocol for sweeteners
Sweeteners are food additives and as such are regulated substances which are subject to safety […]
Sweeteners are food additives and as such are regulated substances which are subject to safety evaluation by the European Food Safety Authority (EFSA). All food additives must be included in the ingredient lists on food product labels which must clearly identify both the function of the food additive (i.e. sweetener) and the specific substance by referring to the appropriate E number or its name (i.e. E954 or saccharin).
EFSA has launched an open consultation on a draft scientific protocol for assessing consumer exposure to sweeteners. The consultation closes on 22 November 2019.
WM comment
If this consultation is relevant to you, we would encourage you to leave feedback via the online form which you can find here.

Price comparison adverts ruled in breach of ASA standards
In October 2018, Tesco launched a series of press and TV advertisements which featured trolley […]
In October 2018, Tesco launched a series of press and TV advertisements which featured trolley and basket loads of products which Tesco claimed were cheaper than if they had been bought at Aldi or Lidl. The products were all from the ‘Exclusively at Tesco’ range which is the supermarket’s entry level own-brand.
Aldi Stores Limited complained to the Advertising Standards Authority (ASA) claiming that the adverts were misleading because the adverts implied that the Tesco baskets/trolleys of goods were representative of a typical shop at Tesco, and therefore representative of the prices and savings that could be typically achieved when shopping at Tesco rather than Aldi or Lidl. Furthermore, they were entirely comprised of Tesco own-brand products which were only available in selected English Tesco stores and did not therefore constitute typical shops for consumers living in other parts of the UK.
Tesco said the basket and trolleys in the adverts did not explicitly or implicitly represent typical shops and did not contain general savings claims. They believed they should be able to highlight a specific range of own-brand products against comparable competitor products, as they had done in the campaign, without an additional requirement that the examples must represent a typical regular shop.
The ASA ruled that all of the adverts were misleading because they did not make clear that none of the products from the ‘Exclusively At Tesco” range were available in Tesco Express or Metro stores and that the specific combination of products upon which the savings were calculated were available in fewer than half of their larger stores. The ASA found the adverts gave the overall impression consumers could save money by swapping from shopping at Aldi or Lidl to buying from the ‘Exclusively at Tesco’ range. It said: “We considered that the ads made clear the comparison was between entry-tier exclusive brands at Tesco and entry-tier exclusive brands at Aldi and Lidl, as opposed to typical shops at each retailer, and we were satisfied that Tesco had included in the comparison products that would provide for a fair and representative comparison of the price of products in those entry-tier ranges.”.
The adverts breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.33 (Comparisons with identifiable competitors) and 3.39 (Price comparisons), and ad (e) breached BCAP Code rules 3.1 and 3.2 (Misleading advertising), 3.33 (Comparisons with identifiable competitors) and 3.39 (Price comparisons).
The ASA ruled that none of the adverts should appear again in their current form.

Dairy company fined after health and safety breaches
A dairy farm has been fined following an incident in which an employee was permanently […]
A dairy farm has been fined following an incident in which an employee was permanently blinded by corrosive chemicals used in cleaning. An employee was cleaning the walls of the dairy using a corrosive disinfectant DM CiD, which contains potassium hydroxide. The pump sprayer being used unexpectedly developed a fault and ruptured into the face of the employee covering him in the caustic and corrosive disinfectant.
An investigation by the Health and Safety Executive (HSE) found that the company failed to plan and supervise the use of chemicals for cleaning the dairy and did not have effective emergency arrangements in place. The dairy company pleaded guilty to breaching Section 2(1) of the Health and Safety at Work Act 1974 and was fined £8,000 and ordered to pay costs of £11,879.94.
Speaking after the hearing, HSE inspector Stephen Faulkner said “This incident could so easily have been avoided by implementing correct control measures, safe working practices and appropriate emergency arrangements. Agriculture is an industry with a high accident rate, and the chemicals and activity involved in this incident are common in dairy farming, so this case should send a message to farms about the dangers of working with chemicals. Companies should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards”.
WM comment
For advice relating to all aspects of Health and Safety please speak to Stuart Ponting.