RPC Bites #22 - Brexit tips with 30 days to go, ASA rulings and farming subsidy reforms

03 December 2020. Published by Ciara Cullen, Partner and Ben Mark, Partner

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!!

Access the full edition of RPC Bites here 

Brexit and Beyond - preparing the food and drink sector for 1 January 2021

On 23 November 2020, we hosted a 'Brexit and Beyond' webinar. The aim of the session was to inform food and drink businesses about what they can expect from 1 January 2021 and to provide practical tips on the steps that can be taken between now and the expiry of the transition period, on 31 December 2020, to mitigate the impact of Brexit. 

We know that diaries don't always permit people to join live so the webinar was recorded and can be viewed here

Chaired by RPC's Ciara Cullen, Partner and Head of Food and Drink, the panel featured:

  • Rebekah Kendrick, Head of Brexit at The Wine and Spirit Trade Association;
  • Nicola Hetherington, Principal Policy Advisor at the Confederation of British Industry (CBI); 
  • Sally Jones, Brexit and Strategy Lead at EY; and 

James Martin, Director of Policy at The British Chambers of Commerce.

Amongst others, top takeaway tips included: 

  1. Supply chain: Speak to everyone in your supply chain to determine how Brexit will impact them. Even if you are well-prepared or less impacted, the same may not be true for other businesses that you deal with;
  2. Finance: Consider whether temporarily shortening payment terms would assist with supply chain issues; 
  3. Movement of goods: Consider which port(s) you use, whether it / they are likely to be congested and if there are alternatives; 
  4. Regulatory: Ensure you are familiar with the rules that govern trade between the EU and third party countries (which the UK will become, on 1 January 2021); and  
  5. Data: Ensure you have a good understanding of your business' data flows and that you have started to use and/or incorporate model clauses. Read more

Food for thought: An open letter to Boris Johnson

On 20 November 2020, the Food and Drink Federation, UK Hospitality, ISBA and the Advertising Association, together with representatives of various well-known food and drink businesses wrote an open letter to Prime Minister Boris Johnson. The letter raises concerns about the Government's proposed ban on the online advertisement of products deemed high in fat, sugar and/or salt (HFSS). We covered the proposals, in detail, in Issue 21 of RPC Bites. 

Amongst other things, the letter raises concerns regarding:

  • The "impossibly short period given for responses" - the consultation opened on 10 November, for 6 weeks, and will coincide with a period when many food and drink businesses are already busy preparing for the end of the Brexit transition period; 
  • The lack of clarity and apparent breadth of foods currently defined as HFSS under the existing Nutrient Profiling Model; and
  • The lack of weight given to evidence submitted regarding advanced advertising targeting tools, which allow businesses to aim ads at adult audiences only.

The letter goes on to request that the Government extends the consultation deadline and meets with industry representatives to discuss the way forward. It remains to be seen how the Government will respond but we will continue to provide HFSS updates in subsequent issues of RPC Bites. Read more

BrewDog argued that it wanted to shock people into thinking about the planet. 

On 18 November 2020, the Advertising Standards Authority (ASA) upheld complaints against BrewDog for a breach of the CAP Code in respect of an advert displayed on posters and in free newspaper, 'The Metro'. However, in the same ruling, the ASA declined to uphold complaints made against the same advert, as featured in publications, 'The Week' and 'The Economist'. 

The ad complained of showed a can of 'BrewDog Punk IPA' covering the stars in the phrase "F**K YOU CO2. BREWDOG BEER IS NOW CARBON NEGATIVE". Complainants challenged the advert on the basis that it was offensive and inappropriate for display in places where it could be seen by children. 

BrewDog argued that it wanted to shock people into thinking about the planet. 
In respect of the posters, it told the ASA that it had planned their locations in accordance with guidelines on proximity to schools and religious buildings and that it had chosen to run the poster ads during school holidays. For the ads that featured in publications, BrewDog provided statistics on the make-up of the readership and details of the decision processes that the editorial teams had undergone before running them. 

Despite BrewDog's detailed response, the ASA was not entirely convinced and found that the ad was likely to cause widespread offence, when used in untargeted media (i.e. the posters and in free newspaper, The Metro). A similar ruling was not made regarding the adverts that ran in 'The Economist' and 'The Week' however, on the basis that their readerships were limited by subscription models. 

This is not the first time the ASA has upheld complaints against BrewDog ads. In 2019, complaints were upheld against billboard ads that featured the text "SOBER AS A MOTHERFU" (the full ruling can be viewed here). Read more


Business Secretary tells farmers to get ready for Brexit

The Business Secretary, Alok Sharma, has written to businesses in the 'agri-food' and 'biosecurity' sectors (letter available here). The letter warns businesses of the need to "act now" to avoid disruption when the Brexit transition period ends in less than a month's time. 

The letter cites the following as 'top action' points: 

  • Register online to submit Export Health Certificates (EHCs), which will be required for the export of live animals and animal products to the EU; 
  • Ensure an understanding of the new documentation and procedures for the import and export of plant products from and to the EU; 
  • Ensure compliance with the new food labelling requirements that will apply to food and drink products exported to the EU (as covered in Issue 18 of RPC Bites); and
  • Check the latest guidance on moving goods into, out of or through Northern Ireland.    

Whilst businesses on both sides of the Channel wait with bated breath to see if further trade deals will be agreed, various steps can be taken now to mitigate the impact of Brexit, whatever the outcome of those negotiations. 

For more information on how best to use the remainder of the transition period to prepare for 1 January 2021, please feel free to view our 'Brexit and Beyond' webinar, a link to which appears above. Read more

Aches and pains for 'Joint Plus' 

On 25 November 2020, the ASA upheld a single complaint against an advert contained in a leaflet circulated by Health Solutions Ltd.

The leaflet in question promoted the 'Joint Plus' supplement and claimed "Joint Plus works for you no matter what, GUARANTEED". Other statements promised, "INCREASES flexibility", "RAPID RELIEF from inflamed joints", "ALLEVIATES muscle tightness" and "IMPROVES joint flexibility day after day". The leaflet also contained various claims about the purported health benefits of ingredients used in the product, including turmeric and devil's claw. 

The ASA found that the leaflet had implied or stated that the food supplements could prevent, treat or cure human disease, in breach of the CAP Code. The ASA also found no evidence that the health, or reduction of disease, claims were listed on the EU Register, as is required. This amounted to a further breach of the CAP Code, as well as a breach of Regulation (EC) No. 1924/ 2006. 

The ruling is an important reminder that the perils of making baseless health related claims in ads is not COVID-19 specific and that the CAP Code has long prohibited this. Further commentary on this subject can be found in our F&D blog. Read more

Tone Deaf-ra: robust criticism for the Government's sustainable farming plans

On 30 November 2020, The Department for Environmental, Food & Rural Affairs (DEFRA) unveiled its new roadmap for sustainable farming, which promises to achieve a "better, fairer farming system in England". The announcement forms part of the Government's overall plan to replace the existing EU farm subsidies regime, with a scheme that focusses on sustainability criteria. 

The proposed changes will be implemented over a seven-year period, seemingly to make adapting less onerous for farmers. Amongst other things, there will be rewards for farmers and land managers who utilise sustainable farming practices. DEFRA hopes that the plans will improve both the environment and animal health and welfare, as well as reducing carbon emissions.

Heralded as "the most significant change to farming and land management in 50 years", the plans have already received staunch criticism from some areas of the food industry. The organic certification body, Organic Farmers & Growers, has highlighted a number of "glaring holes" in the strategy, including the lack of financial detail and the absence of guidance regarding how sustainable practices should be implemented, in actuality. Read more

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