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RPC Bites 38 – Green Claims Code gets the green light, McDonald's announces new plant-based products and EU to UK import controls delayed until 2022

12 October 2021. Published by Ciara Cullen, Partner and Ben Mark, Partner and Sarah Mountain, Senior Associate and Dani Barnes, Associate and Ellie Ward, Associate and Harpreet Kaur, Associate

Welcome to RPC Bites. Our aim in the next 2 minutes is to provide you with a flavour of some key legal, regulatory and commercial developments in the Food & Drink sector over the last fortnight… with the occasional bit of industry gossip thrown in for good measure. Enjoy!!

Green Claims Code gets the green light

In both RPC Bites and our dedicated Retail Therapy Blog, we have been closely following the CMA's investigation into whether so-called 'green claims' could be misleading consumers, in breach of UK consumer protection laws. As a reminder, 'green claims' are statements which suggest that a product or service provides an environmental benefit or is less harmful to the environment than others.

In Issue 32 of RPC Bites, we reported that the Competition and Markets Authority (CMA) had issued draft guidance on the subject for consultation. Following the closure of that consultation on 16 July 2021, the CMA has published its Green Claims Code (the Code) and supporting guidance (the Guidance). The hope is that this will assist businesses to navigate the dos and don'ts of making environmental claims.

The Code essentially enshrines 6 principles outlined in the CMA's draft guidance, namely:

  • Claims must be truthful and accurate;
  • Claims must be clear and unambiguous;
  • Claims must not omit or hide important information;
  • Comparisons must be fair and meaningful;
  • Claims must consider the full life cycle of the product or service; and
  • Claims must be substantiated.

The Guidance also refers to a 13-point checklist of questions and statements which businesses should consider and be able to either agree with or answer affirmatively when making green claims.

The CMA has also confirmed its intention to carry out a full review of misleading green claims early next year and says it will not hesitate in taking enforcement action where needed. Careful regard for both the Code and the Guidance is therefore an absolute must going forwards.

McDonald's announces new plant-based products, just in time for Veganuary!

We like to keep on top of crucial food and drink news here at RPC Bites and deliciously sustainable new products are no exception. In Issue 21, we reported that McDonald's was due to release its McPlant burger in the UK, in 2021, following success in Canada. Just under a year later, we can now confirm that McDonald's has begun trialling the McPlant in 10 Coventry-based stores.

Made in collaboration with Beyond Meat, Meatless Farm and the pea protein supplier, Equinom, the burger features a plant-based patty and 'bespoke' vegan cheese, created from pea protein.

In a bid to avoid the controversy that shrouded competitor Burger King, when it launched its vegan burger, the Rebel Whopper, McDonald's has announced that the McPlant will be cooked completely separately from the restaurant's other products, using dedicated utensils.

Following trials, the McPlant is set to see a national rollout in January 2022 – just in time for Veganuary!

It's a green theme for the ASA too

Keeping with sustainability, the ASA has been working in parallel with the CMA, as part of its "Climate Change and the Environment" Project (the Project). The Project, which was launched last November, aims to review the ASA's governance of environmental claims. Following completion of the Project's first stage review, the ASA recently published a statement outlining its next steps:

  1. Later this year, the ASA's sister body, CAP, will issue advertising guidance setting out key principles that advertisers should follow to ensure their ads do not mislead about the environment;
  2. The ASA will conduct enquiries into specific issues, starting, as a priority, with carbon reduction in the aviation, car waste, heating and animal-based food sectors; and
  3. The ASA will also commission research into consumer understanding of "Carbon Neutral" and "Net Zero" claims, as well as "Hybrid" claims in the electric vehicle market.

With both the CMA and the ASA heavily scrutinising environmental claims, it will be imperative for businesses to keep abreast of developments to ensure that they stay on the right side of the regulators.

EU to UK import controls delayed until 2022

The Government recently published its "revised timetable" for the introduction of import controls on food and farming goods imported into the UK from the EU.

In a bid to protect European supply chains from further disruption attributed to the COVID-19 pandemic, the Cabinet announced that the following border checks on goods imported from the EU will be delayed until 2022:

  • The pre-notification of Sanitary and Phytosanitary (SPS) goods will be extended from 1 October 2021 to 1 January 2022;
  • New requirements for Export Health Certificates will be extended from 1 October 2021 to 1 July 2022;
  • Phytosanitary Certificates and physical checks on SPS goods at Border Control Posts will be extended from 1 January 2022 to 1 July 2022; and
  • Safety and Security declarations on imports will be extended from 1 January 2022 to 1 July 2022, although full customs declarations and controls will come into force on 1 January 2022, as previously planned.

Explaining the postponement, the Government stated that it wants businesses to "focus on their recovery from the pandemic rather than have to deal with new requirements at the border". The move has not been unanimously popular however, with some accusing the Government of using the pandemic as a scapegoat and alleging that the true cause of recent disruptions is Brexit itself. The Food and Drink Federation has also commented that "the rug has been pulled” from under those who duly prepared for the new regime in a timely manner.

Movement of chilled meat put on ice

Flashback to our Summer Bumper Edition of RPC Bites, in which we reported that the EU had extended the grace period for the movement of British chilled meat products to Northern Ireland (NI) until 30 September 2021.

On 6 September, shortly before that deadline was due to expire, Lord Frost, the Minister of State in the Cabinet Office, announced that all current grace periods under the NI Protocol (including those relating to chilled meats) will be extended once again. It appears that the so-called "standstill" arrangements, proposed to the EU in July this year, will remain in force until a deal can be struck with Brussels.

According to Lord Frost, the move will "provide space for potential further discussions" and "give certainty and stability to businesses while any such discussions proceed".

Hard-to-recycle packaging and bags for life confined to the scrap heap

With the £200 per tonne tax on plastic packaging containing less than 30% recycled material looming (see further information here), various UK supermarkets have been busy overhauling their product packaging.

Ocado is planning to roll out its new 'Pro-Produce' liner-less apple packaging. In a move that will reduce the amount of waste sent to landfill, Ocado is hoping to provide customers with "greener choices" in this joint development project between the supermarket, apple producers, Orchard World and Peake Fruit and packaging / label producers, Ravenwood Packaging and ProPrint Group.

The totally non-plastic packaging, which is comprised of a nested carton-board tray and lid, should help Ocado remove nearly 12 tonnes of hard-to-recycle plastic each year. Ocado has pledged to use 100% recyclable packaging for all its own label products by 2023 so we will likely see further innovations in the near future.

In a similar vein, Waitrose recently announced further bans on single-use plastic bags. The move is part of a wider campaign to remove 40 million single-use plastic bags from circulation per year. On 27 September 2021, the retailer replaced its 'bags for life' (which can be purchased for 10p) with fully recyclable bags, for which the charge is 50p.

Tesco has also been in on the action, announcing the addition of 88 branded and own-label products to its "Loop" refillable aisle. In a strategy that reduces reliance on plastic, Loop aisles contain reusable-packed products that have been returned by customers, cleaned by EcoLab and shipped to the manufacturer for refilling. Readers can find out more about Loop here.