Food and Agri Update - 19th April

ASA Environmental Claims in Food advertising – Further Scrutiny expected from July 2024

An overview of recent research findings and recommendations is provided. Although the Advertising Standards Authority (ASA) concluded there was no widespread need for enforcement action to bring claims into compliance with the advertising rules in the food sector, they would none the less be providing for additional monitoring and follow-up engagement from July 2024. Guidance was also to be provided on the use of the term 'regenerative farming' and preparation towards a consultation on a food eco-labelling scheme.

On 18^th April 2024 the ASA published research ASA research into environmental claims in food advertising - ASA | CAP that involved the monitoring of a sample of thousands of ads through their Active Ad Monitoring system, which utilises AI to process online ads at scale, and human inspection.  The ASA would be providing for additional monitoring and follow-up engagement from July 2024 to address instances of clear-cut breaches of established positions already set down in existing ASA Rulings and Guidance, with the potential to formally investigate other, less clear-cut instances of non-compliant advertising within this sector, with a particular focus on unqualified sustainability and comparative environmental impact claims. Environmental claims in food advertising - ASA | CAP

Key findings: 

• The use of broad claims like ‘good for the planet’ were usually taken at face value and were less likely to be challenged by the research participants. However, when in the more reflective mindset of the interview, there was some concern expressed that such claims were so general and/or absolute, that they were unlikely to be verifiable – with some participants concerned that such claims could be a brand’s way of making stronger implicit claims without providing any evidence. 
• The use of certain terminology or visual imagery in advertising contexts could lead to a cascade of associations, imbuing a series of implied attributes into the product or brand that hadn’t been explicitly claimed. For example, using the word ‘natural’ could lead to the assumption that the products were also certified organic.  
• Visual imagery could also evoke assumptions about environmental, animal welfare, and health benefits. Images of produce which appeared ‘fresh’ could elicit beliefs in much the same way that terms such as ‘natural’ or ‘plant-based’ could. Green, both as a colour and a word, was reported to be powerfully evocative of environmental, animal welfare and plant-based themes, signalling a brand’s environmentally conscious ethos, without explicitly making any claims.  
• Research participants felt the use of specific terminology like ‘plant-based’ or ‘vegan’ was assumed to be accurate as it was viewed as clear and verifiable. In addition, the consequences of inaccuracy to vegetarian and vegan consumers could be high – and immediate. 
• Nutritional perception and healthy eating were frequently cited as the primary drivers of dietary preferences and food purchasing decisions, over the environmental impact of food, which was at most a secondary driver of purchase for the majority, and often used as post-rationalisation for choices rather than a catalyst. 
• Many participants felt that the claims (and counterclaims) made in ads comparing the environmental impact of plant-based products versus animal products effectively cancelled each other out; what’s more, there was a perception amongst some participants that some ads can feel overly ‘preachy’, with claims perceived to vilify a participant’s lifestyle choice (such as the choice to eat meat; these types of claims risked total disengagement from some participants).   

Key Recommendations

key recommendations that the ASA will take forward in 2024: 

• The ASA will continue its engagement with the CMA, Defra, and industry stakeholders on its findings, and CAP will also be providing further guidance to industry this summer in the form of a series of Insight Articles to be published on the ASA website. You can sign up to receive CAP’s Insight Articles here. 
• From July 2024 the ASA and CAP proposes additional monitoring and follow-up engagement to address instances of clear-cut breaches of established positions already set down in existing ASA Rulings and Guidance, with the potential to formally investigate other, less clear-cut instances of non-compliant advertising within this sector, with a particular focus on unqualified sustainability and comparative environmental impact claims. 
• Although this review found little evidence of obviously problematic examples of ‘green’ or ‘natural’ imagery in the sample analysed, the ASA will continue to monitor for potential misleading ‘green’ imagery issues in 2024, given the strong consumer research findings.  
• In order to better understand what regenerative farming involves (and any potential emerging issues around it), the ASA will engage with industry and other partners on the issue and thereafter produce guidance to assist businesses to make claims that are more likely to be compliant with the advertising rules. 
• Additionally, the ASA will continue to work in partnership with the Department for Environment, Food & Rural Affairs (DEFRA) and the Institute of Grocery Distribution (IGD) as they work with industry to gather information to inform their recommendations to the UK government that cover the label, methodology, data, and governance in preparation for consultation on a food eco-labelling scheme. 

ASA Recent Rulings

'Subject to availability' – How much heavy lifting can this do?

XC Trains Ltd t/a Cross Country Trains XC Trains Ltd - ASA | CAP  Internet (website content) 17 April 2024

A webpage made misleading claims about the availability of complimentary food and drink for First Class passengers on Cross Country Trains.

The ASA considered that the ad positioned complimentary food and drink as a key part of Cross Country Trains’ First Class offering, with “Sit back, relax, and enjoy complimentary refreshments” appearing in the heading of the webpage that described the different benefits of the First Class service. That page linked to a page headed “First Class Train Food and Drink” where further details of the complimentary offering were described: that an at-seat service of food and drinks was “available throughout the day”; and that in addition to drinks and snacks customers could choose from a range of sandwiches for longer journeys.

The ASA acknowledged that text underneath those claims stated "*All items and offers listed are subject to availability, may change or may be withdrawn at any time”. Two specific routes were referenced where “a reduced selection of drinks and snacks will be available on trains where catering is provided”. However, the ASA considered that this was not sufficient to counteract the overall impression that complimentary food and drink would be available on all but a few First Class services.

The ASA considered that the scheduled rate of between 70% and 78% of services offering catering was insufficient to substantiate the overall impression of the ad that “complimentary food and drink” would be available on all but a few First Class services.

FSA’s flagship survey shows food affordability concerns have risen

The latest wave of the Food Standards Agency’s (FSA) Food and You 2 survey, conducted between April and July 2023, shows that respondents’ concerns over food affordability continued to rise to the highest level since the survey began. 

Key findings 

• 88% of respondents reported that they were confident that the food they buy is safe to eat 
• 55% of respondents said they were ‘highly concerned’ about the affordability of food, with a further 34% saying they were ‘somewhat concerned’ (a combined total of 89%) 
• 80% of respondents reported that they had made a change to their eating habits for financial reasons in the previous 12 months. The most common changes were eating out less (49%), eating at home more (45%), eating fewer takeaways (44%) and buying items on special offer more (44%) 
• Some respondents reported an increase in risky food safety behaviours due to financial reasons: 21% kept leftovers for longer before eating, 21% had eaten food past its use-by date more and 6% changed the setting on the fridge/freezer 
• Of respondents who reported having a food concern (28%), the most common concerns related to food production methods (33%), nutrition and health (30%), and the quality of food (23%) 
• 68% of respondents reported that they had confidence in the food supply chain 

The full Wave 7 report is available in the research section of our website (Opens in a new window). 

CBD Judicial review

The Home Office conceded in the High Court that its import ban over Jersey Hemp Ltd.'s oil containing cannabidiol, or CBD, was unjustified under U.K. drug laws, Judge Stephen Eyre said in a Feb. 16 judicial review decision now made public.

The company proved officials wrongly held that the product falls outside of exemptions which allow the import of products containing controlled drugs where the product is not designed to administer that banned substance, in this case tetrahydrocannabinol, or THC.

 “Hemp” is a term used to describe any part of the cannabis plant that contains 0.3% or less Tetrahydrocannabinol (‘THC’) content. THC is the psychoactive part of the cannabis plant and is a controlled drug pursuant to the Misuse of Drugs legislation.  CBD is not a controlled drug, but is an extract of the cannabis sativa plant. This leaves behind a trace of THC, which Jersey Hemp stated was beneath the legal cap of 1mg.

The Home Office's Drugs and Firearms Licensing Unit, asserted instead that Jersey Hemp could no longer import its product to the U.K. as it could not prove that the drug was not designed to administer THC.  However, the Home Office has since admitted that it misapplied these rules before going on to wrongly ban the importation of the oil.  uksc-2022-0019-judgment.pdf (supremecourt.uk)

Scottish consultation on colony caged chickens

The Scottish government last week announced a new consultation on outlawing the use of cages to house hens involved in egg production.  While the use of battery cages for birds was banned in the UK in 2012, many farmers still use enriched cages in egg production and around a quarter of eggs consumed are laid by hens kept in enriched colony cage systems

Gary Ford, British Egg Industry Council chief  has been reported as stating:  “With a substantial proportion of the UK’s eggs produced in Scotland, a ban could lead to job losses and a direct impact on its economy, as well as reducing the number of eggs in the market, putting additional pressure on free-range supply…Producers in Scotland who export to the rest of the UK will also be disadvantaged by the proposed changes”.

The consultation closes 25 June and is available at Consultation on a proposal to phase out the use of cages in Scotland’s laying hen sector - Scottish Government consultations - Citizen Space

'PFAS' on fruit and veg

Per-and polyfluoroalkyl substances (PFAS)  are a family of 10,000 chemicals branded as ‘forever chemicals’ because of their ability to persist in the environment and accumulate in the blood, bones and tissue of living organisms.

New research from Pesticide Action Network (PAN) UK has reported that many common UK food items contain PFAS pesticides. 

PAN UK analysed the latest results from the UK government’s residue testing programme and found strawberries were the worst offenders with 95% of the 120 samples tested by the government in 2022 containing PFAS pesticides.  After strawberries, grapes, cherries and spinach were most frequently found to contain the pesticides, with over 42% of each having the chemicals detected.

The results analysed by PAN UK were taken from the latest data from the UK government’s Expert Committee on Pesticide Residues in Food, which tests roughly 2,500 one-kilogram samples of food from supermarket and other food outlet shelves.

Chemicals in food and food contact: The Materials and Articles in Contact with Food (England) Regulations 2012 regulate the presence of chemicals in food and food contact materials. Similar legislation exists in Wales and Scotland. There are currently no specific restrictions on PFAS in food or food contact materials.

A Defra spokesman stated the UK government set strict limits on the pesticides residue levels in both food for consumers and feed for animals.

Not for EU labelling roll-out

The UK’s ‘Not For EU’ labelling scheme has already been rolled out in Northern Ireland and is set to expand to the rest of the country this October 2024.

The ‘Not for EU’ labels have been in place for certain goods, such as dairy and meat, produced in Great Britain and sold in NI supermarkets since last October.

The proposed requirement means some businesses will have to have different packaging between UK and export lines.

Health and Safety - April is Stress Awareness Month

Stress is one of the leading causes of sickness absence in the workplace. All employers are required to prevent work related stress to support good mental health in the workplace and this should not be forgotten in the food and agri sector.

The Health and Safety Executive’s (HSE) Working Minds campaign has called on employers to support workers mental health during Stress Awareness Month.  Over the course of the month, employers are encouraged to focus on one of the campaign’s 5 Rs for each of the five weeks. They are: to Reach out and have conversations, Recognise the signs and causes of stress, Respond to any risks you’ve identified, Reflect on actions you’ve agreed and taken, and make it Routine.

The Health and Safety Executive (HSE) and NEBOSH have jointly developed a new one-day qualification Certificate in Managing Stress at Work

Livestock & Safety this springtime

HSE is currently running its Your Farm, Your Future campaign aimed at improving safety on British farms with a focus on livestock in 2024. Statistics show four workers were killed following incidents with animals on farms in 2022/23.  On average, between one and two members of the public are killed each year while using public rights of way, others suffer serious injury.

Farmers have a legal responsibility to manage their herds to reduce risk to people using footpaths and other rights of way.  In the past 12 months, HSE has prosecuted four landowners/farmers for failing to take appropriate steps to stop walkers from being seriously injured on their land.  This is the season where livestock are more likely to be with their young and so extra precautions may be required.