RPC Bites #47 –Kellogg's takes on the Government, certain HFSS restrictions are postponed and ingestible CBD products fall foul of FSA rules

Published on 17 May 2022

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!!

Just in: HFSS delay

In Issue 45 of RPC Bites, we reported that the Government was considering whether to delay upcoming HFSS regulations, in light of the cost of living crisis. However, when Issue 46 went to press, it seemed that the regulations would be coming into force in October 2022, as originally planned, following the publication of the Department of Health & Social Care's implementation guidance.

On 14 May 2022, in somewhat of a U-turn, the Government confirmed that HFSS restrictions relating to volume price promotions and free refills for soft drinks would be delayed for a year. The advent of a 9pm watershed for TV and paid-for online ads has similarly been delayed until January 2024. Meanwhile, restrictions on the placement of HFSS products at aisle ends, store entrances, checkouts and online equivalents will still go ahead in October 2022.

In its press release, the Government explained that the delay would allow it to "review and monitor the impact of the restrictions on the cost of living in light of an unprecedented global economic situation." But not everyone is celebrating the postponement - whilst the Food and Drink Federation and Advertising Association welcome the Government's decision, health campaigners are displeased. At the other end of the spectrum, the Association of Convenience Stores has urged the Government to go further and to reconsider the entirety of the forthcoming regulations.

HFSS regs get a 'Frostie' response from Kellogg's

Before the delay to certain HFSS restrictions was announced, cereal giant Kellogg's launched judicial review proceedings against the Government in relation to the Nutrient Profiling Model (NPM) which is used to determine the products that fall within scope of upcoming HFSS regulations.

Kellogg's claims that cereals are unfairly qualified as HFSS products as the regulations fail to consider the nutritional value of the milk that most consumers combine them with. According to Kellogg's, the NPM used for cereals is outdated and should consider the nutritional value of cereals 'as consumed' (i.e. with milk) rather than 'as sold' (i.e. dry). This approach would mean that many cereals are no longer considered HFSS and are not therefore captured by the forthcoming regulations.

Reaction from the industry and public has been mixed. Whilst some have praised Kellogg's intervention, others have been critical of what they view as an attempt, by a large multi-national corporation, to circumvent regulations that are designed to improve and promote public health.

The action is still at a very early stage but a judge has reportedly accepted that the case 'has merit', meaning that a court hearing could well be the next step. However, it remains to be seen whether Kellogg's will continue its action now that some HFSS restrictions have been delayed. We will provide updates in future issues of RPC Bites. For more detailed insight on what we know so far, check out our recent F&D blog.

Ingestible CBD products hit by FSA rules

Cellular Goods, a company part-owned by David Beckham, has been forced to pull sales of its ingestible CBD range after it emerged that the products were not compliant with Food Standards Agency (FSA) rules on CBD products.

In February 2020, the FSA announced that businesses wishing to bring CBD products to market would need to submit an application for novel food authorisation. However, only products that were on sale before 13 February 2020 were eligible to do so. If successful, established products then appeared on the FSA's approved 'novel foods' list but the regime effectively prohibits the launch of new CBD products, whilst the FSA assesses the potential risk that the category poses to consumers.

Cellular Goods claimed that its ingestible CBD products were simply rebranded versions of products sold by a supplier with full novel foods authorisation. However, Trading Standards required the withdrawal of the products, as they had not been on sale in February 2020. Cellular Goods are reportedly "disappointed by the FSA’s stance" and have sought clarification on the position.

Deliveroo order of two million emergency meals

Deliveroo has entered into a UK-wide partnership with food charity, Trussell Trust to support individuals and families most affected by the current cost of living crisis.

For the first time, customers from all four corners of the UK will have the option to add a round-up donation to food orders made through the Deliveroo app. The proceeds will then be used to provide emergency food parcels through the charity’s network of 1,200 food banks across the UK. The move is set to enable Deliveroo to provide two million meals, as part of its pledge to help the 9% of parents (around 1.3 million people) who, according to the Trust's own research, are likely to use a food bank in the next three months.

Retailers continue to innovate when it comes to sustainability

 Sustainability has been high on the retail agenda for some time now and innovations in this space continue to emerge. Three recent developments are outlined below.

In a bid to meet its goal of reducing food waste by at least 50% by 2030, Asda has recently collaborated with Swedish food tech start up, Whywaste. Whywaste's digital date checking solution will alert Asda employees to products nearing their expiry date, via an app. This will enable quicker and more efficient price reductions for such products. Whywaste's press release on the collaboration can be viewed here.

Also on the subject of sustainability, Warburton's has launched 100% recyclable paper packaging for its new 'Seeds & Grains' bread range (to read more, click here). In a double whammy for the bread maker, the loaves are also low in saturated fat and sugar.

Finally, Costa Coffee is set to trial 100% recyclable fibre coffee cup lids in 150 of its stores this summer. According to Costa, the lids have a carbon footprint that is up to 50% lower than its regular plastic lids. The lids will be expanded to all Costa outlets next year, if the trial is deemed a success. Further details can be found here.

Fifth time's the charm? Checks on EU imports delayed yet again

In Issue 40 of RPC Bites, we reported that the Government had extended the timeline for imposing physical checks on animal and plant based food imports from the EU for a third time until July 2022.

Now, some 5 months on, the Government has delayed the introduction of the checks yet again, in a bid to avoid supply chain disruption. Minister for Brexit Affairs, Jacob Rees-Mogg announced in parliament on 25 April 2022 that it would be "wrong to impose new administrative burdens and risk disruption at ports" as businesses are already facing soaring costs as a result of the war in Ukraine and rising energy prices. He confirmed that the regime would instead come into force at the end of 2023, a move which he claims will save British businesses up to £1bn annually.

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