Food and Agri Update - Friday 17 May

Second annual Food Summit at 10 Downing Street – Tuesday 14 May 2024

A number of measures were launched to include:

• Further support for farmers and growers affected by wet weather  - temporary adjustments will be made for farmers and land managers where the wet weather has led to difficulties carrying out the requirements of Environmental Land Management Schemes.  
• New plan to increase domestic production in the UK horticulture sector with a continued commitment to cut planning red tape for agricultural buildings such as greenhouses. 
• Food Security Index published setting out key data and trends; including that food security was ‘broadly stable’ in 2023/24 across seven indicators, with some reduced risk in productivity and energy and fertiliser prices. Also, reductions in the 2024 harvest are anticipated, particularly for wheat, due to recent wet weather and flooding.
• Fair dealing regulations similar to those recently enacted for the dairy sector to be rolled out to other sectors.
• New farming grants to help boost farm businesses 

New grants for farmers:

The new grants announced include: 

• £3 million in support for new and mobile abattoirs through the Farming Investment Fund. 
• Over £20 million for the Laying Hen Housing for Health and Welfare Grant, which offers grants between £5,000 and £500,000 each, to help laying hen and pullet farmers to improve the health, welfare and productivity of their flocks. 
• Over £72 million for Endemics Disease Scheme to make sure farmers can take the action they need to take to tackle endemic disease. 
• And a Nutrient Management grant to support the development and adoption of novel techniques for improving nutrient management

For more information, you can read the full announcement on GOV.UK. 

Europe and CAP

EU Parliament approved revision of the EU’s common agricultural policy (CAP)

• Revised environmental “conditionalities” may already be used to claim EU support in 2024
• More exemptions from some CAP standards possible in case of extreme weather
• Smaller farms to be exempt from controls and penalties for non-compliance with some of the rules

Proposal for a regulation of the European Parliament and of the Council amending Regulations (EU) 2021/2115 and (EU) 2021/2116 as regards good agricultural and environmental condition standards, schemes for climate, environment and animal welfare, amendments to CAP Strategic Plans, review of CAP Strategic Plans and exemptions from controls and penalties (COM(2024)0139 - C9-0120/2024 – 2024/0073(COD)) - Committee on Agriculture and Rural Development.  The regulation now has to be approved by Council. Following the approval by the Council, the law will be published in the EU Official Journal and enter immediately into force. Farmers will already be allowed to apply revised environmental “conditionalities” for their claims for EU financial support in 2024.

The CAP review changes the rules for three environmental conditionalities farmers must adhere to in order to receive funding. It also provides more flexibility for EU countries to grant exemptions from CAP standards if there are problems with applying them and in case of issues caused by extreme weather. Small farms under 10 hectares would be exempt from controls and penalties for non-compliance with some CAP rules.

CMA Report into Price Marking

The CMA published the findings from its review into price marking within the groceries sector on 8^th May as part of its ongoing investigation in response to the cost of living crisis. CMA calls on grocery stores to make accurate pricing a priority - GOV.UK (www.gov.uk)

The report found some evidence of non-compliance, but, like previous investigations into both unit pricing, and into ’profiteering’ by supermarkets, it found little evidence of intentional malpractice. standards and levels of compliance were found to vary significantly between retailers with convenience stores and independent chains faring worse. Issues mostly involved the consistency of how prices are displayed across stores and the accuracy with which the selling price matched the price displayed.

The CMA is expected to publish its initial findings from its supermarket loyalty scheme investigation in July. 

ASA and CAP annual report

The Advertising Standards Authority (ASA) CAP (non-broadcast includes ODFP and social media as well as posters)  has published a report on how the ASA are using AI tools to scan millions of ads online and highlights particularly the focus on environmental claims. ASA-CAP-2023-Annual-Report.pdf and the shift away from complaints-led investigations towards proactive ASA-led monitoring and enforcement.

Environmental Claims Research

Please also see our blog on ASA Environmental Claims in Food advertising – Further Scrutiny expected from July 2024 - Mills & Reeve (mills-reeve.com)

Recent 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.  

New research and guidance on ads in podcasts published

The Advertising Standards Authority (ASA) CAP (non-broadcast includes ODFP and social media as well as posters)  has published new guidance New guidance on making ads clear in podcasts - ASA | CAP on ensuring ads read by podcast hosts and content creators are identifiable, which will come into effect on 16 August 2024.

The research focuses on host-read ads in podcasts and offers interesting insights into listeners' perceptions of advertising in podcasts, including preferred terms for distinguishing ads from editorial content.

New rules on advertising 'alcohol alternatives' come into effect

Relating to the promotion of beverages with an ABV at or below 0.5%, the new rules cover the content, targeting and scheduling of alcohol alternative product ads. Please see Alcohol alternatives – new rules and guidance are live - ASA | CAP

The new guidance provides more detailed information on what is expected from advertisers and covers:

ABV Limits: For the purposes of the Codes, alcohol alternatives products are those at or under 0.5% ABV, which is typically in line with how the alcohol alternatives market broadly describes their ‘alcohol free’ products.

Definition: Alcohol alternatives are non-alcoholic drinks (those at or under 0.5% ABV) that are intended to replace alcoholic drinks in contexts where they would normally be consumed, e.g. non-alcoholic beer. The Codes state that an ad will be subject to the new rules “…if it is likely to be understood by the audience as an ad specifically for an alternative to alcohol, whether in general or as a non-alcoholic version of a particular alcoholic drink…”.

Cross-promotion and Shared Branding:  Ads might, whether by accident or design, have the effect of promoting alcoholic drinks. A clear example would be promotion of alcohol alternatives alongside alcoholic drinks, as part of a wider brand range or by a retailer. More implicitly, the use of alcohol-related imagery (similar packaging, glassware, or serving styles) without clarity about the alcohol-free nature of the product is likely to be considered to have the effect of promoting alcoholic drinks, even though the product itself is an alcohol alternative. Ads for alcohol alternatives which have the effect of promoting alcoholic drinks or a wider alcoholic brand must comply with the rules relating to alcoholic drinks.

Unsafe Circumstances and Consumption Habits:  Alcohol alternatives are useful products for consumers who are unwilling or unable to drink alcohol in some or all circumstances, such as people with underlying health conditions or a designated driver. Ads for alcohol alternatives are not prohibited from depicting these scenarios, provided it is clear in the ad that the product is an alcohol alternative. The ASA advises advertisers to take care to ensure that it is clear to consumers that, what might appear to be unsafe or inappropriate consumption, is acceptable because the product does not contain alcohol

ASA Recent Rulings

Tonic Nutrition Ltd t/a Tonic Health  Upheld  Website (own site), Social media (own site)  15 May 2024

A website and Instagram reel made unauthorised nutrition and comparative nutrition claims, and discredited competitors' products. 

The listing statements included “No Added Sugar, No Junk, Vegan”. A table comparing the Daily Immunity product with various competitor products including Berocca.

The CAP Code stated that marketing communications must not discredit or denigrate another product or marketer. The rule applied irrespective of whether or not a claim was true, if it appeared in a comparative advertisement and was expressed in terms which were insulting, derogatory or demeaning. Ads which included comparisons with competitors which went beyond a robust and objective comparison of their products or services risked breaching that rule.

Hangcure Ltd t/a Hangcure   Upheld  Social media (influencer or affiliate ad) 15 May 2024

A TikTok ad for a hangover cure claimed that a food supplement could treat human disease, claiming the product could help hangovers was a claim that a food could prevent, treat or cure disease, which were prohibited. 

The ASA further further assessed the brand name Hangcure and the product name Hangcure Rebound. We considered that the word Hangcure would be understood by consumers to be a shorthand for "hangover cure”, and would therefore be understood as a claim that the Hangcure Rebound product, and other products sold under the Hangcure brand name, could prevent or cure a hangover. The product and brand names were therefore a claim to prevent, treat or cure hangovers, which was prohibited.

Ultra processed foods – FSA recommends a ‘healthy’ diet

The Food Standards Agency has published consumer information in relation to the current science and evidence around ultra-processed food (UPF) and the FSA’s role and the possible correlation between the consumption of a lot of UPF and poorer health. 

The FSA stressed a healthy balanced diet alongside their Eatwell recommendations as well as the difficulty in assessing the parameters of UPF. 

The UK government has similarly addressed the difficulties in assessing this area.  ‘UPFs were defined loosely as products that typically contain large numbers of ingredients produced commercially, rather than domestically, and involving production methods that are not achievable during home preparation’. Ultra-Processed Food - HTML - GOV.UK (www.gov.uk). To this end it is important that the food industry also is part of the debate over achieving the clearest information to consumers.

The role of ‘clean labelling’ looks set to continue in importance for producers and consumers.

Adult Allergies – focus on plant based

Around 6% of the UK adult population have a food allergy, new report from the Food Standards Agency set out. The Patterns and Prevalence of Adult Food Allergy (PAFA) report, a large study into the prevalence of food allergies in the adult population in the UK, found that more than 30% of adults reported some types of adverse reactions when eating food - meaning they had an illness or trouble when eating a particular food. When this was investigated further through a clinical assessment, it was found that around 6% of the UK adult population are estimated to have a clinically confirmed food allergy. This equates to around 2.4 million adults in the UK. 

The research also found that for UK adults:  

• foods such as peanuts and tree nuts like hazelnuts, walnuts and almonds, are most likely to cause an allergic reaction
• many individuals also had allergies to fresh fruits such as apple, peach and kiwi fruit. These were associated with allergies to birch pollen, also known as pollen-food allergy syndrome or oral allergy syndrome
• allergies to foods like milk, fish, shrimp and mussels were uncommon
• childhood food allergies persist into early adulthood, and then further increase with around half of food allergies developing in later adulthood

Through this research, the FSA pointed to patterns such as the emergence of plant-based allergies affecting more people into adulthood.

This is important for plant and alternative protein producers to be aware of in their labelling and promotion.  Read the full Patterns and Prevalence of Adult Food Allergy report.

Chicken delivery food fraud

Defendants were found to have taken advantage of their position within a food company to seek to defraud it by the making of 84 secret deliveries of chicken, amounting to a loss to their employer of £318,347.  They were sentenced to terms of imprisonment earlier this year.

Rana Dhaia, owner of Townsend Poultry in Wolverhampton, together with Darren Williams and Elliot Smith, both Dispatch Managers employed by the supplier of the chicken, conspired together to commit fraud.  Mr Williams and Mr Smith destroyed records of the illicit deliveries, forging handwritten dispatch notes to cover their tracks. The fraud was discovered by auditors.  Although Townsend Poultry was not a registered customer, the investigators made enquiries with local hauliers and discovered evidence of the deliveries.  

Mr Williams and Mr Smith both pleaded guilty to fraud by abuse of position and each received a 2-year suspended sentence on 2 February 2024.  Meanwhile, Mr Dhalia pleaded not guilty to the charge of acquiring criminal property but was convicted by a jury in October 2023. He was sentenced to four years and three months imprisonment.

About the National Food Crime Unit

• The NFCU is a dedicated law enforcement function of the Food Standards Agency. The unit provides leadership on food crime across England, Wales and Northern Ireland.
• The NFCU was established in 2015 following a review of the 2013 horse meat incident. The NFCU is tasked with protecting consumers and the food industry from food crime within food supply chains.

Food fraud is not a victimless crime for the reputable food companies concerned and it is recommended that regular risk assessments of supply chains are undertaken.  The offences not only would have financial implications but the potential for reputational harm and food safety uncertainty due to breaches in traceability.