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RPC Bites #26 - A welcome ASA ruling for HFSS products, the Scotch Whisky industry is calling and the decision to regulate the CBD industry in the UK.

04 March 2021. 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.

A welcome ASA ruling for HFSS products

A McDonald's advert, which featured its Double Quarter-Pounder Cheeseburger was recently subject to complaints after being broadcast by ITV, on a Saturday afternoon during the airing of the film, 'Nancy Drew'. The Cheeseburger had been marked by Clearcast with an 'ex-kids' scheduling restriction, meaning that it could not feature in/around programmes targeted at children.

Despite this, the ASA found in ITV's favour, ruling that the broadcaster had not erred in running the advert. Although the ASA considered the 'ex-kids' restriction was appropriate (the BCAP Code prevents adverts for foods high in fat, sugar or salt (HFSS) from being principally directed at audiences under the age of 16), its reasoning was based on the films' true target audience. ITV explained that it had assessed the commissioning intention of the film, its content and the books on which the film was based before deciding to broadcast the advert. It relied on the Broadcaster's Audience Research Board (BARB) data to conclude that under-16s were continuously underrepresented in the film's audience. 

The ASA agreed, noting that the film's cast largely comprised of older teens and that it contained adult themes such as murder and physical attacks. Whilst the ASA acknowledged that some of the intended audience would be under 16, it emphasised the relevance of the BARB data to demonstrate that the film was also directed at adults and families who would appreciate the film's previous franchises. The ASA therefore concluded that the film was not directed at, or particularly appealing to, viewers under the age of 16.  

The ruling goes to show that the Double Quarter-Pounder Cheeseburger really is a timeless classic, especially when paired with the right movie
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Westminster - the Scotch Whisky industry is calling - please pick up 

Scottish rural economy minister, Fergus Ewing has written an open letter to the Environment Secretary, George Eustice, encouraging Westminster to intervene and support the 'decimated' Scotch Whisky industry. The once 'booming' sector is now facing catastrophe following COVID-19 related disruption, post-Brexit bureaucracy and the imposition of 25% tariffs on US imports of Scotch Whisky since October 2019. The combined impact of this 'triple threat', as Ewing describes it, has resulted in a 23% decline in the export value of Scotch Whisky, with global exports falling by more than £1.1 billion during 2020, according to reports by the Scotch Whisky Association (SWA) which can be found here. 

In his letter, Ewing urges the UK Government to address the issues facing the sector in order to restore the success of one of Scotland's most prized industries. In terms of Brexit related issues, Ewing highlights the reality for the Scotch Whisky sector:

Additional, inconsistent and expensive certification requirements for a number of EU countries, despite Scotch Whisky being a low risk product from an animal and plant health perspective; 
Significant delays to or suspension of groupage shipments due to increased complexity and paperwork issues, particularly in relation to transit procedures leading to major customs delays; and 
Complications with UK labelling of food business operator or importer details following the implementation of the Northern Ireland Protocol. 

Yesterday's Budget announcement will provide some respite for the sector as Chancellor, Rishi Sunak announced that alcohol duty will be frozen for another year. The SWA have largely welcomed the Chancellor's announcement as giving distillers "some breathing space". However, it has invited the Chancellor to produce a clear timetable for the "reform of the UK’s outdated system of alcohol taxation" and appealed for government resolution of US tariffs on Scotch Whisky, citing the risks the tariffs pose to the sector's US market share. See a summary of the Chancellor's full Budget announcement here
Read more... 

Reminder: Submit your CBD novel food applications ASAP

In one of the very first issues of RPC Bites, we reported on the Food Standards Agency's (FSA) decision to regulate the CBD industry in the UK. In January 2019, 'cannabinoids' (which include CBD products) were entered in the EU Novel food catalogue. For the UK, this culminated in the FSA's announcement last February, that companies wishing to bring CBD products to market would need to submit an application for novel food authorisation to the FSA. 

A year on and having refused industry requests to extend the deadline (see RPC Bites Issue 8 for further details), the FSA is encouraging those that need to, to submit their novel food applications sooner, rather than later. The deadline for submission is 31 March 2021 and the FSA has warned that applications will be subject to an 8-day admin check and could take up to 30 working days to be validated. 

From 1 April 2021, CBD products for which a validated novel foods application has not been made, will be prohibited from sale. Businesses that continue to sell products in spite of this risk enforcement action
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Who is right and who is just being shellfish? 

On 8 February 2021, the Environment Secretary, George Eustice, outlined to parliament the ongoing dispute between the UK and the EU over the interpretation of provisions concerning the trade of live 'bivalve molluscs', such as oysters and scallops. There is currently a ban, imposed by the EU, on UK exports of live shellfish from Class B waters, harming the interests of UK fisheries, EU restaurants and retailers that rely on such products. 

The EU has refused to grant the UK a special export health license for the export of these animals despite the UK Government writing to the European Commission to set out its objections to the ban. The UK Government argues that it has received multiple assurances, since February 2019, that trade would continue unimpeded after the end of the Brexit transition period and that the health of the shellfish could be substantiated. Despite the UK's pleas, the EU has not been swayed even with threats from businesses on both sides of the Channel.

In the meantime, the UK Government has set up a £23M compensation fund for fishers whose exports have been subject to delays caused by new paperwork requirements stemming from the UK's trade agreement with the EU. Mr Eustice claimed the delays were only temporary and that a new license system would be implemented in April 2021 - a claim that the EU has rejected. 

Negotiations between the UK Government and the European Commission remain ongoing. Read more...

The battle of the supermarkets continues but is cheaper food really the answer? 

Last year, Tesco rolled out an Aldi price-match campaign, under which the price of hundreds of items was reduced to compete with the German discounter. Sainsbury's is the latest supermarket to wade in on the action, announcing that it will cut prices on 250 essential groceries such as meat, fruit, vegetables and dairy in a bid to match Aldi. 

Sainsbury's claims this will help shoppers balance budgets whilst still being able to buy quality foods. The initiative is part of Chief Executive Simon Roberts' plan to put food 'back at the heart of the business', enabling the supermarket to invest where it matters most: to its shoppers. Sainsbury's has an existing campaign in its 'Price Lock' initiative, under which prices remain the same for at least eight weeks ensuring consistency for shoppers.  

The plan adds fuel to the fire in the ongoing battle between supermarkets to offer customers the lowest possible prices. However, a recent report by think tank Chatham House (which can be viewed here) questions the emphasis on 'cheaper food'. The report argues that this exacerbates both waste and the destruction of biodiversity and natural food production processes. Instead, it calls for an overhaul of the food system, whereby the price of food is influenced by its environmental impact and greater efforts are made by the Government to tackle poverty so that all consumers can access nutritious, sustainable produce. Read more...

Fairer dairy at last?

In Issue 18 of RPC Bites, we reported that the Department for Environment, Food & Rural Affairs (Defra) had launched a consultation into the (hotly contested) topic of how to best price milk contracts. Now, the Government has published its response to that consultation, announcing that it will develop a new statutory Code of Conduct (the Code) for the sector, which vows to 'increase fairness in the supply chain and help farmers become more competitive'. 

Whilst the details of the Code remain to be agreed between the Devolved Administrations with the assistance of industry input, the Government intends the Code to provide a guiding contractual framework for the sector and to establish minimum standards.  

The National Farmers' Union (NFU) has welcomed the announcement, highlighting that, "for too long, dairy farmers have borne far too much of the risk in the dairy supply chain and inappropriate contract terms are often at the root of the problems." However, the NFU is cautiously optimistic, stressing that this is just the beginning of the journey to fairer dairy, and encouraging the industry to collaborate with the Government to ensure a suitable Code is created.. Read more...

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