Food and Drink

Cold Chain in Hot Demand
2 June, 2017

The multinational brewery and pub chain BrewDog – based in the ancient Aberdeenshire town of Ellon – is no stranger to controversy, with a range of beers including the Tactical Nuclear Penguin, Sink the Bismarck and a 55% ABV, The End of History. And with the announcement at their Annual General Mayhem (the hipsters Annual General Meeting) that they are to launch a new chilled transport network that will allow the company greater control over its supply chain, it comes as no surprise then that BrewDogs bombastic grandiloquence is reflected in its logistical operations.

In moving towards having a temperature controlled supply chain – known in industry circles as a Cold Chain – founder James Watt states that BrewDog is aiming to be the first UK Company to provide consistent storage with our transport partners.

But why is having a Cold Chain so important?

In simple terms, chemical reactions will go faster at a higher temperature; think: the pears left on the countertop that in the summer heat will happily turn to mush. Beer is no different. A recent study has found that beer stored at 30 degrees for 30 days will age the same as beer stored at 3 degrees for 365 days. Temperature controlled storage is therefore integral to maintaining the integrity of the product.

However, by no means will the beer be undrinkable if there is no Cold Chain, but it is important to remember that BrewDogs target markets are not your average lager drinker, content with a slightly-flat-always-too-warm lower end product; they look for a particular bitterness and sweetness, a complex bouquet of flavours balanced perfectly against optimum carbonization. With this market in mind, it is clear that flavour is everything. There can also be no doubt that beer consumers are becoming more fickle, and with craft beer often registering triple the growth rates of the total beer market (it grew 14% in Europe in 2014/15), it is important to maintain consistency to preserve your consumer goodwill.

BrewDog has already trialled this Cold Chain to an extent, convincing Tesco to put in several refrigerated beer sections in their stores to ensure BrewDog products did not have to sit on the warm shelves. It is no surprise that this proved to be a great success, with increased sales reported.

It is clear that moving toward a temperature controlled supply chain will have significant commercial implications for BrewDog. Indeed, a recent report by Grand View Research Inc has found that the Cold Chain market in North America is to reach USD 118.51 billion by 2025, and that a well developed Cold Chain can help synchronise supply management techniques and allow greater access to international markets, so this is a solid demonstration of forward-thinking by the Aberdeenshire outfit.

Even the most expertly crafted artisanal beer will, with time, lose its bitterness through oxidization, and even the most successfully run drinks company will lose its cutting-edge individuality through increased consumer expectation; in rolling out this bold new addition to its supply chain, BrewDog is not only protecting its beer; it is protecting its business.

A crafty move indeed by the master crafters – I’ll drink to that!


Drones, Droids and Food and Drink
17 May, 2017

Growing up, the only reference you might have had to drones and Pizza dronerobot droids delivering your food was probably the Jetsons cartoon. Yet, with advancing technology and more industries turning to the use of drones and other unmanned vehicles this concept no longer seems so far fetched. The rise of such technology in the food and drink sector requires us to consider how it will coincide with existing laws.

Where is the technology being used?

On 1 December 2016, Just Eat delivered its first take-away meal to a customer in Greenwich using a robot delivery vehicle. Across Europe and New Zealand, Domino’s Pizza has unleashed its pizza delivery drones, dropping food to customers using these unmanned aerial vehicles (UAVs) and at the extreme end of the spectrum we have Google and Amazon that are investing vast sums of money into the research and development of ‘flying warehouses’ to act as an aerial hub for delivery services.

Moving outside of the ‘delivery’ realm, agricultural and farming companies are utilising drones for a range of purposes including soil and field analysis, aerial inspections and the monitoring of arable and pastoral stock. The commercial benefits of using UAVs can include time and cost saving to the business as well as increased health and safety standards for existing employees (e.g. by avoiding workers having to climb dangerous structures). However, businesses need to be mindful of how such technology interacts with the various laws e.g. consumer and property laws, aviation regulations and data protection.  

The Civil Aviation Authority (CAA) on the use of drones

In the UK, drones are classified as small aircrafts and are therefore subject to UK aviation laws enforced by the CAA. Unless CAA permission has been granted, you cannot:

  • Fly a drone on a commercial basis (known as ‘conducting aerial work’)
  • Fly a drone over or within 150m of a congested area;
  • Fly a drone within 50m of any person; or
  • Fly a drone within 50m of any vessel, vehicle or structure which is not under your control.

Larger drones between 20kg and 150kg require operating permissions, an airworthiness certificate and a qualified pilot. Above 150kg, drone operators will either need an EASA (European Aviation Safety Agency) Permit or UK Permit to fly. Like the rest of the UK aviation industry, commercial drone operators remain subject to UK health and safety laws.

Data protection regulations

Where drones or delivery robots are fitted with cameras or recording equipment, there will be data protection and privacy issues which will need to be considered. The UK data protection authority, the ICO (Information Commissioner’s Office), largely views the images captured by these machines as equivalent to the use of CCTV although with drones there is even greater scope for infringement of privacy as drones can be used to film people in circumstances where they have a reasonable expectation of privacy (for example, their back garden).

Get off my Property!  Trespass and nuisance laws

In certain circumstances, drones can commit trespass when entering private airspace. The rights of a property owner in relation to the airspace above their land are limited to such a height as is necessary for the ordinary use and enjoyment of their land. Simply put, if a drone flies over land at a height that interferes with the landowner’s ordinary use of the land then it will be trespass.

Can a drone constitute a nuisance? The short answer is yes! By way of example a drone used for agricultural or delivery purposes may fly over a landowner’s property multiple times, or hover in one place for an extended period. In doing so, there is a real risk of causing a noise nuisance.

The remedies available to a landowner for trespass and nuisance claims include injunctive relief and damages against the operator of the drone. There is also the risk of a ‘wanna-be’ Elmer Fud taking matters into their own hands and shooting it down although doing so could put that person at risk of sanctions for breach of regulations and criminal damage.  

Damage to property / personal injury

As with all robotic vehicles, drones and delivery robots may malfunction at some point and could cause damage to property or injury to persons. In such cases, the usual principles of negligence will apply, and, if negligent, a business will be liable for foreseeable loss caused. Businesses need to ensure that they have suitable public liability insurance in place and should seek legal advice on the terms and conditions of any agreement.

Other risk assessments include the environment these vehicles operate within e.g. meteorological conditions, airspace, structures, radio and magnetic interference.  Advances in technology such as collision detection, return-to-base, extended battery life and weather proofing can help address these risks and will be an area of rapid advancement.

How can Cripps help?

Cripps has extensive experience in commercial law, consumer law, agricultural and property law. Our experts keep up to speed with evolving technology and its interaction with the law and can help clients understand their position, whether they are considering adopting such technology or have been troubled by it.  If you have any questions, please contact Aleks Wulff aleks.wulff@cripps.co.uk


Chef wins unfair dismissal claim
14 March, 2017

A former head chef of Number 1 Bar in London Bridge has been awarded £36,581 by the Employment Tribunal, after it found that he had been unfairly dismissed for whistleblowing.Knife

Marcelo Lagos was dismissed in May 2015
when his employers told him that the kitchen was closing. However the kitchen did not close and the Employment Tribunal found that he was actually dismissed because he had raised health and safety concerns about kitchen equipment, after he burned his hand at work.  The Tribunal found that his disclosure was clearly in the public interest ‘because anyone who came into that kitchen was likely to be endangered by faulty equipment’.

The Tribunal also found that Marcelo had been discriminated against because of race and that Number 1 Bar hadn’t paid him the correct holiday or notice pay.

It is a legal requirement that all employees are given a written statement of certain terms of their engagement within 2 months of joining. Number 1 Bar had failed to provide one to Marcelo.  

This case serves as a reminder to all employers of some of their key duties.

Health & Safety

All employers owe duties to ensure the health, safety and welfare of their staff and may be prosecuted for failures of their duties under the Health and Safety at Work etc Act 1974. 

To comply with your obligations you should:

  • Have a written health and safety policy if you employ 5 or more people;
  • Regularly review your policy in consultation with staff; and
  • Assess workplace hazards and ensure you have controls in place to minimise risks.

The Health and Safety Executive provides specific guidance for employers working in food and drink manufacturing, catering and hospitality and retail industries: http://www.hse.gov.uk/guidance/industries.htm#f

Whistleblowing

Be aware that if an employee discloses information about a criminal offence, breach of a legal obligation, a miscarriage of justice, danger to health and safety, damage to the environment or the deliberate concealment of any of these, and they do so because they believe that the disclosure is in the public interest, then they are likely to be protected by whistleblowing legislation.

Those working within the food industry may ‘blow the whistle’ by making a disclosure to the Food Standards Agency.  It has published some guidance here.

Employers should create an open environment where staff feel able to speak up. It is also advisable to have a formal whistleblowing policy in place.

S1 statements

You must make sure that you provide new employees with a statement of employment particulars within 2 months of starting with you.  Among other things, the particulars should include the date on which the employee’s continuous employment began, terms and conditions in relation to hours of work, holiday and sickness, and applicable notice periods.

If you are interested in following our employment blog, you can sign up here.


Comparative Advertising – Don’t get caught out
23 February, 2017

As illustrated by the recent EU case[1] against Carrefour hypermarkets, even the big industry players can get comparative advertising wrong.

Comparative advertising is a common feature of brand and product promotion in the food industry, where price point is usually a, if not the, key consideration for consumers. The big supermarket chains are often keen to give lowest price guarantees, in the way that Carrefour was doing here, but smaller industry players may also wish to promote their products in a similar way.   However, this is a complex area of law with a number of legislative controls at UK and EU level and a substantial body of case law, and businesses which get it wrong can suffer reputational as well as financial loss.

If you choose to run an advertising campaign which compares your prices, or other features of your products or services, with those of your competitors you need to make sure the adverts are objective comparisons and not misleading[2] and that they bring to the attention of consumers the necessary information to allow consumers to make a commercial decision in full knowledge of the facts[3].   The problem the Court identified with Carrefour’s adverts, following a complaint by Intermarche, was that the comparison did not relate to shops of the same size or format. The adverts compared prices in Intermarche’s supermarkets against those in Carrefour’s hypermarkets and, crucially, did not clearly bring this clearly to the attention of consumers.

In order not to fall foul of the law in this area[4], food retailers will need to ensure their comparative adverts are clear on:

  • their identity as the advertiser and which products or services are theirs;
  • which competitors they are identifying and which of their competitor’s products and services they are comparing;
  • the basis of the comparison they are making (e.g. price, quality, size);
  • the similarity of their offerings (they must compare “like with like”);
  • the dates the comparisons are made and any other relevant factors; and
  • the documentary evidence they have to back up their claims.

Remember also that if you are using a competitors brand name (trade mark) you will need to exercise care not to confuse your products and services with those of your competitors, or imply a connection between your brand and your competitors or breach their copyright by reproducing their logo or artwork.

If you have any questions about advertising, trademarks or copyright please contact Elliot Fry on 01732 224034.  If you have been the subject of comparative advertising and would like to know your rights, please contact Tom Bourne on 01892 506099.

[1] Carrefour Hypermarches SAS v ITM Alimentair International SASU, Case C-562/15

[2] Directive 2006/114 on Misleading and Comparative Advertising – brought into English Law by the Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276)

[3] Directive 2006/29 on Unfair Commercial Practices – implemented in the UK as the Consumer Protection from Unfair Trading Regulations 2008

[4] Including the UK Code of non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) and the UK Code of Broadcast Advertising (BCAP), as enforced by the Advertising Standards Authority (ASA).  Trading Standards Services (TSS), the Competition and Markets Authority (the CMA) and consumer protection organisations (like Which?) can all seek orders preventing the publication of comparative advertising.


Are you ready for the new rules banning the advertising of high fat, salt or sugar food and drink products in children’s media?
8 February, 2017

From 1 July 2017, there will be a new regime restricting the advertising of high fat, salt or sugar (HFSS) food and drink products in children’s media. Following on from the ban for this category of adverts on broadcast media (TV), the extension of the rules means adverts for products which are categorised as HFSS under the Department of Health nutrient profiling model (introduced in 2007), cannot now be shown in non-broadcast media, including social media and on-line.  The ban restricts adverts on children’s media or media where 25% or more of the audience are children.  In summary:

  • Ads that directly or indirectly promote an HFSS product cannot appear in children’s media.
  • Ads for HFSS products cannot appear in other media where children make up over 25% of the audience.
  • Ads for HFSS products will not be allowed to use promotions, licensed characters and celebrities popular with children.

The new rules will also mean that ads for HFSS products will no longer be allowed to appear around TV-like content online, such as on video-sharing platforms or advergames, if they are directed at or likely to appeal particularly to children. Popular “family” programmes like Britain’s Got Talent and X-Factor, and U-Tube, may however fall outside the restrictions because they do not meet the criteria.  Food packaging for products consumed by children may also still carry promotions.

For the purposes of the new rules, children are those under 16 years of age, who, according to Ofcom research, now spend around 15 hours each week online – overtaking time spent watching a TV set for the first time. The Committee on Advertising Practice (CAP) does however acknowledge that there are many factors that have an impact on childhood obesity, and that available evidence shows that the effect of advertising on children’s food preferences is relatively small, particularly when compared to other factors like parental influences.

In order to help those advertising HFSS products comply with the new law, the CAP has produced a short Q&A – CAP: New food rules: Q&A IV, 26 January 2017.

If you have any questions relating to food advertising or media law in general, please contact Phil Bilney.