Food and Drink

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.


Soft Drinks Industry Levy
12 January, 2017

George Osborne announced in his eighth budget the introduction of a soft drinks industry levy, known as the ‘Sugar Tax’, in a bid to combat obesity. It is claimed that an estimated £520m will be raised in revenue which will be put towards boosting sports within schools. It has been revealed, perhaps not unsurprisingly that Coca Cola, Red Bull and Old Jamaican Ginger beer contain the highest level of sugar with over 10g per 100ml.

The tax will not be immediate, it is set to launch in April 2018, and drinks companies will be provided with two years to change their ingredients and recipes. There will be two categories of taxation: one for sugar content over 5g and one for sugar content over 8g, per 100ml. Pure fruit juices and milk based drinks will be excluded from the Sugar Tax.

All countries are being urged to consider the introduction of a sugary drinks tax by the World Health Organisation, with Hungary taxing them since 2011 and France, Mexico, Chile, the state of California, Barbados and Dominica following suit. The Governments’ incentive being that vast sums of money spent on healthcare can be reduced by ‘battling the bulge’ especially in children.

The response?

Consumers have argued that it is not the government’s business to decide what society should and shouldn’t eat. These products are broadly consumed and to raise the price of them would disproportionately hit the living standards of lower income households. Research shows a link cannot be drawn between decreased sugar consumption and the tax being introduced in Mexico and the Mexicans have only saved five calories a day on average with the poor losing a bigger share of their income to the tax.

In 2012, the Italian government threw out a tax proposal because of the impact it would have on its economy and jobs. Denmark announced the abolition this year of its soft drinks tax acknowledging its regressive nature and the negative impact on regional jobs.

Impact on the Industry?

There is no guarantee that the sugar tax will increase the cost of sugary drinks, with the possibility that companies may decide to absorb the tax.

The announcement of the tax hit the stock-market value of soft drinks companies. Shares in the maker of Irn-Bru, AG Barr, fell 6% since George Osborne spoke to parliament. Shares in Britvic, which makes Pepsi in the UK, are down 3.3%.

As expected, some within the industry are arguing that “if you’re going to punish us then why not them?’’ referring to confectionary and food manufacturers. There is a huge amount of sugar hidden in processed foods which, unlike soft drinks, are not taxed through VAT, arguably because the administrative burden of policing sugary foods is too onerous.

More recently, it has been announced that, Lucozade and Ribena are to have their sugar content reduced by 50% meaning they will contain less than 4.5g of sugar per 100ml and therefore will no longer be subject to sugar tax.

Taking things one step further

NHS England, which is Europe’s largest employer with over 1.3 million staff, has proposed a ban on sugar-sweetened drinks in hospital vending machines and restaurants. Not only is it committed to improving the health of its workforce but it believes that obesity is having an adverse effect on staff sickness absence and their ability to give patients credible and effective health advice.

An overview of the draft legislation can be found on the government’s website at https://www.gov.uk/government/publications/finance-bill-2017-draft-legislation-overview-documents/overview-of-legislation-in-draft


Round up of the Autumn Statement for the food and drink industry
25 November, 2016

The chancellor’s Autumn Statement has received mixed rFood & Drink - Budgeteactions across the industry. Here’s a quick round up of the key changes that might affect it.

Pay and taxation

The National Living Wage for those aged 25 and over this will rise to £7.50 an hour in April 2017. According to the government this will mean a pay rise worth over £500 a year to a full-time worker. The National Farmers Union has expressed concern about the speed of implementation and how it will affect farm businesses. Food and drink manufacturers and the hospitality sector will also be particularly concerned about increased staff costs and the further pressure on profit margins. Conversely, it is good news for low earners. 

The tax-free personal allowance will be increased from £11,000 to £11,500 from April 2017. It is expected to increase to £12,500 by the end of the current parliament and for the higher rate threshold to be increased to £50,000.

Employee and employer National Insurance thresholds will be equalised at £157 per week from April 2017.

Employee benefits changes

The tax and NIC advantages of most salary sacrifice schemes will be scrapped from April 2017 but there will be some transitional protections. Child care, pensions, cycle to work schemes and ultra-low emissions company cares will not be affected by the new restrictions.

Corporation tax cut

The main rate of corporation tax will be cut from 20% to 17% by 2020. The rate will be reduced to 19% from 1 April 2017.

Business rates

Rural Rate Relief will be increased from 50% to 100%, which should help small business such as public houses in rural areas.

UK Export Finance Capacity doubled to £5bn

The chancellor’s aim is to provide the UK Export Finance department with additional resources to make it easier for British businesses to export goods around the world by preventing opportunities collapsing due to export finance or insurance issues.

In addition, the number of UK Export Finance pre-approved local currencies is being increased from 10 to 40, meaning overseas buyers can pay for UK exports in their own currencies. This is particularly good news for the sector. The FDF reports that Q3 exports of food and non-alcoholic drink have reached £3.4bn, with chocolate, salmon and cheese being the top three products on the list.

New £23bn National Productivity Investment Fund

This fund will back new infrastructure and innovation over the next 5 years which has been welcomed by manufacturers and shows a commitment to future productivity growth. Whilst it is hoped this might bring better skilled jobs and manufacturing processes for the sector, much of the focus will be on transport, research and development and housing. £390m has been earmarked for future transport technology such as charging points for ultra-low emission vehicles, driverless cars and hydrogen busses.

£1bn+ investment in digital infrastructure

This should result in faster and more reliable broadband connections benefiting homes and businesses.

No more Autumn Statement

There will be no more Autumn Statement and the budget will be in the Autumn rather than Spring next year. This means there will be only one fiscal event each year and businesses will not have to deal with such frequent changes.

Sugar tax

Draft legislation for the Soft Drinks Industry Levy will be published by the government on 5 December 2016.

Fuel and alcohol

The fuel duty freeze continues which is good news for logistics and there was no change to alcohol duty.