Food & Agri Update - January 2024

Brexit Border Checks

Long-awaited changes to border controls on the import of animals, food and flowers from the EU into the UK will be subject to new Brexit customs controls from the end of January.

Under the new restrictions, imports of chilled and frozen meat and fish, cheese and dairy products, and five common varieties of cut flowers will require an export health certificate, signed off by a European vet or plant inspector, before they can enter the UK.

From 30 April the same categories of goods will face physical inspections at the border, raising the prospect of delays and potential for increased costs.

The new rules come four years after similar checks were imposed on UK exporters to Europe, and have already been delayed five times because of concerns about disruption and increasing costs to consumers.

The government reports the checks are required to protect UK biosecurity and prevent pests and diseases from being imported, and level the playing field for UK exporters.

Goods from Ireland will be subject to controls for the first time but those coming from Northern Ireland will not as they are subject to lighter controls under the Windsor Framework.

New deal on GB to NI goods

The government has published a deal which paves the way for power sharing to return in Northern Ireland. PDF-2.pdf (publishing.service.gov.uk) 

It comes after the Democratic Unionist Party (DUP) announced the agreement.  The DUP has boycotted Stormont for almost two years in protest at trade arrangements after the UK left the EU

A new deal will mean no checks when goods move within the UK internal market system, save those conducted by UK authorities.  A commitment to remove the legal duties to have regard to the ‘all-island economy’ in section 10(1)(b) of the European Union (Withdrawal) Act 2018.  As well as legislative change to recognise the end of the automatic pipeline of EU law in Northern Ireland.

Sir Jeffrey Donaldson says goods staying in Northern Ireland will not need checks or customs declarations.  He says more details will be announced - adding that it is a "significant change" in trade arrangements

It is expected to pass legislation in Parliament on Thursday, which could lead to a recall of the NI Assembly by Friday

The new deal will mean no routine checks on goods crossing from Great Britain to Northern Ireland. Key aspects of this outlined for the food and agri community are:

• Legislation guaranteeing Northern Ireland’s unfettered access to the UK’s internal market. This will include expressly prohibiting exit procedures on goods moving from Northern Ireland to Great Britain, providing a competitive advantage and protection for Northern Ireland agrifood goods.
• Replacing the green lane of the Windsor Framework with a UK internal market system
• Legislation to maximise the flow of goods across the UK to guarantee unfettered access for Northern Ireland goods to the rest of the UK on an ongoing basis in all scenarios, regardless of any future regulatory divergence between Northern Ireland and Great Britain; apply the Market Access Principles of mutual recognition and non-discrimination to Northern Ireland goods in Great Britain on an ongoing basis in all scenarios; and ensure that the benefits of the repeal of EU food and drink standards in the UK’s internal market are enshrined in the UK Internal Market Act.
• Legislation to confirm Windsor Framework labelling requirements will apply across the United Kingdom. This will provide a critical, legally binding UK-wide solution.It therefore looks like the ‘Not for EU’ labelling change for certain food products will continue to be rolled out.

Allergen labelling in non-prepacked foods

The FSA is backing calls for "Owen's Law" which will introduce guidance for food businesses of non-prepacked foods ie cafes and restaurants, on how best to provide written allergen information.

Currently, the rules regarding the provision of allergen information are set out in the Food Information to Consumers (FIC) Regulation No. 1169/2011: for non-prepacked food (such food served in restaurants and cafes) the information on the presence of any of the 14 allergens must be made available to consumers.  This information can be provided either in a written format (for example allergen information on a menu) or orally.  If a FBO chooses not to provide written information there must be signposting to direct the consumer to where this information can be found, such as asking a member of staff.

Written information can provide a high level of detail but is relatively static (it takes time to change a menu).  Over-reliance by consumers and businesses could result in dynamic risks such as cross contamination or substitutions not being fully communicated and understood.  Research shows this can be pertinent for SMEs where changes of ingredients can be frequent.  This increases the potential for mistakes when information is not updated correctly. 

Written allergen information informs consumers about which dishes they should definitely avoid based on intended ingredients but will not inform them if the other dishes have ingredient substitutions or might have unintended contaminants.  These limitations have important implications for safety.

Conversations between the business and its customers are much more dynamic and can capture changes in the moment, including specific needs and potential solutions.  However, they put a lot of responsibility onto servers to remember to pass on information, and to ensure that the information they provide is accurate and up to date.

The FSA Board agreed has agreed that they would like to see written allergen information be mandated in the non-prepacked sector. 

In addition to providing written information, the Board also acknowledged that there should be an expectation for a verbal conversation to take place between customers and food business staff, to ensure an added layer of protection for consumers.

‘The Board feel that we should set an expectation that food businesses like coffee shops and restaurants provide allergen information in writing as well as having a conversation… to maximise the likelihood of this happening, written information should be a legal requirement, rather than just guidance.’  Professor Susan Jebb, Chair on the FSA

In the meantime, the FSA will work to develop strong guidance for food businesses on how to provide written allergen information to help drive up compliance and make it easier for people with a food allergy, intolerance and coeliac disease to protect themselves when eating out. 

FSA Board agrees to strengthen allergy information for consumers | Food Standards Agency

CMA targets retailers -  Unit Pricing & Loyalty Schemes

The Competition & Markets Authority has backed government proposals to tighten regulations around how retailers display unit prices, Summary of consumer research and unit pricing analysis - GOV.UK (www.gov.uk) after its research showed consumers generally found unit prices to helpful as a way of identifying value.

Last week the Department for Business and Trade outlined proposals to amend the Price Marking Order 2004 – which sets guidelines for how prices are displayed – following a consultation Government response to consultation on 'Smarter Regulation: Improving consumer price transparency and product information for consumers' - GOV.UK (www.gov.uk)

It included potential mandates to ensure retailers use consistent measurements to display unit prices, and proposals to set clear legibility criteria for how unit prices are displayed.

Loyalty Schemes

The Competition & Markets Authority has also this month begun a review to explore if loyalty scheme prices were ‘misleading’ to consumers. Loyalty pricing in the groceries sector - GOV.UK (www.gov.uk)

The review is expected to continue to the summer 2024. The CMA stated it would look at individual deals and if they were as presented and also look at “whether any groups of shoppers are disadvantaged by promotional activity” and “whether loyalty pricing is impacting consumer behaviour, and whether this has an impact on how supermarkets compete with each other”.

CMA sets out approach to new digital markets regime

A new version of the Digital Markets, Competition and Consumers Bill (DMCCB) has been published. The DMCCB is expected to become law in early 2024. A policy paper summarises New pro-competition regime for digital markets - GOV.UK (www.gov.uk)

At the heart of the Bill is a new approach to digital market regulation, allowing the Competition and Markets Authority (CMA) to intervene quickly and flexibly to promote competition.

The Bill significantly expands the CMA’s enforcement of UK consumer protection laws.  Under the Bill the CMA will have new enforcement powers to enforce breaches of consumer regulation as opposed to going to through the courts. When finding a breach of the rules the CMA will be able to impose fines of up to 10% of annual global turnover of the businesses involved.

On 11 January 2024, the CMA published a document setting out its provisional approach to implementing the new digital markets competition regime.  Overview of the CMA’s provisional approach to implement the new Digital Markets competition regime (publishing.service.gov.uk)

The CMAs working assumption is that the Parliamentary process will conclude in Spring 2024 and that their new responsibilities will commence in Autumn 2024.

Thatcher’s vs Aldi - trade mark case dismissed

In Thatchers Cider Company Ltd v Aldi Stores Ltd [2024] EWHC 88 (IPEC), Thatchers v Aldi FINAL Judgment IP-2022-000076 (serlecourt.co.uk) the Intellectual Property Enterprise Court held that the defendant's "Taurus cloudy cider lemon" product did not infringe the claimant's "Thatchers cloudy lemon cider" device mark, and that the defendant was also not liable in passing off.

The trademark infringement claim was dismissed in a High Court judgment, which concluded Aldi’s product had a “low degree of similarity” to Thatchers but there was “no likelihood of confusion” in the minds of consumers.

Thatchers claimed the overall appearance of the Aldi product was 'highly similar' to that of the Thatchers product sold under the registered trade mark and that it was far more similar in appearance than other third party cloudy lemon products on the UK market.

Further, in adopting the appearance that Aldi intentionally set out to cause a link in the 'minds of consumers' between the Aldi product and the Thatchers product, in order to encourage customers to buy the Aldi products and thereby benefit from that link.

The Court held that Aldi used Thatchers product packaging as a benchmark for the packaging of its own product.  It also held that Thatchers registered trade mark had a reputation throughout the UK and the mark had enhanced distinctiveness. Furthermore, Aldi’s packaging ‘called to mind’ Thatchers registered trade mark.

Nevertheless, the Court concluded that, the similarity was at a ‘low degree’ (there was sufficient difference in brand names THATCHERS and TAURUS), and therefore Aldi’s packaging did not ‘free-ride’ off the reputation of Thatchers registered trade mark and was not “detrimental to the repute of the trademark”.

A key aspect was the lack of evidence that any consumers believed that the Aldi product was that of Thatchers, ie that is manufactured, or licensed, or approved by Thatchers.

Contractual unfairness in the agri-food supply chain

Defra consultation on Fresh Produce follows similar consultations that have already taken place looking at the dairy, pig and egg sectors, and is the next step in delivering on the UK government’s commitment to consult on the need for supply chain fairness regulations on a sector-by-sector basis.

Consultation on contractual relationships in the UK fresh produce industry - consultation document.docx. Consultation ends 22 February

Bird Flu & Eggs

Defra is consulting on a revision to egg labelling restriction.  If agreed, producers will no longer need to change how eggs are labelled during a bird flu outbreak. Consultation on removing the 16-week derogation period in egg marketing standards legislation in England and Scotland - Defra - Citizen Space

Currently, when mandatory housing orders are introduced, eggs from free-range birds may continue to be labelled as “free-range” for 16 weeks and then must be labelled as barn eggs.

The proposals for England and Scotland will consult until 5 March 2024 and will amend the regulations to remove the “derogation” period. This would mean that free-range eggs can stay labelled as such throughout mandatory housing measures. It would also align the free-range egg marketing rules with the European Union

EU & Green Claims

Empowering Consumers

Empowering consumers for the green transition through better protection against unfair practices and better information EUR-Lex - 52023AP0201 - EN - EUR-Lex (europa.eu)  (COM(2022)0143 – C9-0128/2022 – 2022/0092(COD))

On 17 January 2024, the European Parliament gave its approval to the Proposal for a Directive on empowering consumers for the green transition through better protection against unfair practices and better information  The directive proposed by the Commission would amend the Unfair Commercial Practices Directive (UCPD) and the Consumer Rights Directive (CRD).

A summary guide for what this may mean for the food sector is as follows:

Prohibited:

• Generic environmental claims which are not substantiated by a certification or heavy documentation, such as eco-friendly, green, climate friendly, carbon neutral, energy efficient, biodegradable, biobased, conscious, responsible, fair, fairer, just, and similar.

• Claims about the whole product or its parts, such as recyclable (referring to the packaging), less packaging, less plastic, better new formula, its natural origin, etc.

• Claims on durability, such as messages inducing consumers to replace the product earlier than technically required

• Any unsubstantiated claim, message, logo as a whole

Permitted:

• Sustainability labels based on certification schemes, or established by public authorities

• Environmental claims with clear objectives, and easily verifiable commitments, targets, and independent monitoring systems

The Directive needs to be approved by the Council. After that, the Directive will enter into force on the 20th day following its publication in the Official Journal of the EU, Member States will then have 24 months to implement the new rules into their national law.

Green Claims Directive

The Directive is also meant to work together with the proposal for a Directive on substantiation and communication of explicit environmental claims (the "Green Claims Directive"). 

This is being discussed at committee stage in Parliament. The Green Claims Directive will provide for more details by setting minimum requirements on the substantiation and communication of voluntary environmental claims and environmental labelling in business-to-consumer commercial practices. 

Corporate Sustainability Reporting Directive (CSRD)

On 5 January 2023, the Corporate Sustainability Reporting Directive (CSRD) entered into force. This new directive strengthens the rules concerning the social and environmental information that companies have to report. A broader set of large companies, as well as listed SMEs, will now be required to report on sustainability.

The first companies will have to apply the new rules for the first time in the 2024 financial year, for reports published in 2025.

Companies subject to the CSRD will have to report according to European Sustainability Reporting Standards (ESRS).

Corporate Sustainability Due Diligence Directive

On 14 December 2023, the European Parliament and Council reached a provisional agreement on the EU Corporate Sustainability Due Diligence Directive (CSDDD ), which will introduce a duty on companies to undertake human rights and environmental due diligence in their global value chains.

CSDDD will apply to EU companies and parent companies two years after the date on which it comes into force, and non-EU companies three years after the date on which it comes into force.

UK - Reforms to the wine sector

As of 1 January 2024,

• English sparkling wine producers are no longer required to use mushroom-shaped stoppers and foil covers on bottlenecks, and the government have also removed the ban on making and selling of piquette. The government confirmed the change on the 31 December 2023, as well as announcing that they will remove the requirement for imported wines to have an importer address on the label.
• In addition, the government has recently announced plans for businesses to be able to sell prepacked still and sparkling wine in 500ml and 200ml sizes as well as a new 568ml "pint" quantity.

For more information please see: Summary or responses REUL wine October 2023 (publishing.service.gov.uk)

Labelling guidance for no- and low-alcohol alternatives

The reforms are expected in 2024

The government carried out a consultation seeking views on whether to raise the threshold set out in guidance for describing a drink as "alcohol free" to 0.5% alcohol by volume (ABV). The current ABV threshold in the UK is 0.05%.

The consultation closed on 23 November 2023, and it is expected that updated labelling guidance will be published later in 2024.

Based on the consultation, this may introduce guidance on multiple labelling aspects, including when descriptors such as "alcohol-free", "de-alcoholised, "non-alcoholic" and "low-alcohol" can be used.

Please seeUpdating labelling guidance for no and low-alcohol alternatives: consultation - GOV.UK (www.gov.uk)

ASA Ruling

HJ Heinz Foods UK Ltd t/a Heinz HJ Heinz Foods UK Ltd - ASA | CAP

The CAP Code stated that promotions must communicate all applicable significant conditions where their omission was likely to mislead. Significant conditions may, depending on the circumstances, include information about how to participate and a closing date.

The CAP Code also stated that marketing communications that included a promotion and which were significantly limited by space must include as much information about significant conditions as practicable.

Heinz said their “Free Dayz Out” promotion was advertised on a number of Heinz products between 28 June 2023 and 31 October 2023. The promotion offered consumers who purchased a relevant product the opportunity to apply for a variety of free events and activities. They said the promotional products were all sold within approximately two months of being placed on sale.

Heinz said the ad contained clear instructions on how to enter the promotion. As it was significantly limited by space, it directed consumers to an easily accessible alternative source which contained all significant terms and conditions. Scanning the quick-response code (QR code) or following the web address on-pack took consumers to a form that could be completed to redeem entry to the events and activities. To submit the form, consumers had to tick a box confirming they had read the promotion’s terms and conditions. Consumers also had to enter a batch code from the bottom of the tin; no proof of purchase was required. They said the promotion’s significant terms and conditions were below the form and stated “UK, 18+. Opens 28 June 2023. Claim voucher by 31st October 2023. Use voucher by 31st December 2023, unless otherwise stated. One claim per product purchased. Maximum of two claims per person per day”. They said that due to limited space available on the ad it was appropriate to make the terms and conditions of the promotion available on the website.

The ASA understood that only consumers aged 18 years and over could participate in the promotion; promotional vouchers had to be claimed by 31 October 2023; only one claim could be made per product purchased; and that consumers could only make two claims per day each. They considered those were significant conditions which were likely to affect consumers’ understanding of the promotion and their decision to participate. The ASA therefore considered their omission was likely to mislead. 

The ad did not include any of the above significant conditions of the promotion. However, the ASA considered the ad was not sufficiently limited by time or space to justify their omission. The ASA therefore concluded the ad had breached the Code.