Designer food: misleading representations and Brexit

Annual Review 2017-2018

June 2018

In the European Union, misleading advertising is unlawful. The Unfair Commercial Practices Directive prohibits misleading practices that contain false information likely to deceive the average consumer. In the food sector, much of the information comes from packaging and labelling.

The UK’s decision to exit the EU could result in significant change. Since 2005, most of UK food law is shared with the EU. Food labelling regulations offer assurance of food being safe, properly identified and authentic. Despite harmonised rules across Europe, each member state already has a degree of autonomy. However, Brexit may create an opportunity to do away with the restrictions of what some may consider unnecessary ‘red tape’, or may even be an opportunity to set higher standards.

THE POTENTIAL FOR DIVERGENCE IN FOOD LABELLING

The starting point of the European Union (Notification of Withdrawal Bill) 2017 – 2019 Bill is to transpose all existing EU legislation on ‘Exit’ day into UK legislation. While this means that there will be no immediate change, new EU laws may no longer be applied.

Opportunities to change UK food labelling have already been hinted at. The 2016 Childhood Obesity Plan stated, “The UK’s decision to leave the European Union will give us greater flexibility to determine what information should be presented on packaged food, and how it should be displayed.”

The ‘positive lists’ of approved nutrition and health claims, and whether to adopt or change these, are another area in which the UK may consider divergence. In May 2017, leading manufacturers and suppliers wrote an open letter
to the European Commission, and the UK Government, calling for the urgent adoption of EU-wide nutrient profiles (NP) for nutrition and health claims, to avoid misleading consumers and to provide a level playing field for fair competition. These suggestions have never been implemented.

Another potential divergence can be found in regulations around the sustainability of packaging. To date, the EU has pushed the UK from a recycling and environmental perspective. The UK may use Brexit as an opportunity to take a divergent policy across and beyond EU member state borders.

Protected geographical indications (PGIs) and protected designations of origin (PDOs) may also be examples of divergence that could be trumped by consensus. The EC has already issued a position paper reflecting a desire that the UK and EU continue the scheme – inviting the UK to introduce complementary legislation.

Already there are examples of UK divergence before Brexit. The EU Food Information for Consumers Regulation (FIC) introduced mandatory ‘back of pack’ nutrition information, with an option for voluntary ‘front of pack’ labelling. Here, the UK is already ahead of the EU, with its own voluntary front of pack ‘traffic light‘ labelling which equates with the envisaged NP.

As early as 2010, around 80% of products in the UK contained some form of front of pack label, arguably giving consumers more transparent information.

It is clear that policies will continue to develop in the UK even if not prompted by the 27 other countries. Nevertheless, subject to the detail of any future trade agreement with the EU, the best commercial option is likely to be continuing to produce to EU standards despite any Brexit-induced changes.

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