Safety
2005 was the year of the General Food Regulation with requirements concerning notification and withdrawal making it also the year of the recall. With technical development making the identification of contaminants more readily available and with new allergen labelling requirements now in force, it is likely that 2006 will follow suit.
Additionally, the burden of proof in verifying compliance in food safety is shifting increasingly to the food producer and the new food hygiene package of measures that was introduced at the start of 2006 is no different.
Food hygiene
The long awaited revision to the hygiene regulations came into force at the beginning of 2006, consolidating 17 existing EU measures in food hygiene.
The new hygiene package is a streamlined body of legislation that is designed to provide clearer and more harmonized rules on the hygiene of foodstuffs.
The new legislation will affect all food businesses, including caterers, primary producers (such as farmers), manufacturers, distributors and retailers. This mirrors the EU’s aim of achieving food safety “from farm to fork”.
Under the food hygiene legislation there is greater emphasis placed on food operators to ensure the safety of food. There should be a clear Hazard Analysis Critical Control Point (HACCP) strategy in place. Document retention of this is already required for most businesses and the new hygiene regulations make this a specific legislative requirement for all food businesses (other than primary production).
This may be an opportunity for industry to re-visit its standards and training. In any event it is good practice to keep a HACCP strategy regularly under review and audited.
Microbiological criteria
A number of more detailed implementing and transitional measures have been adopted at European level. Microbiological criteria in current EC legislation have been revised as part of a risk-based approach to food safety and have been set for certain bacteria, such as salmonella and listeria. Other pathogens may be added in the future. The microbiological criteria can be used by food businesses to validate and verify their food safety management procedures and when assessing the acceptability of foodstuffs, or their manufacturing, handling and distribution processes.
Food operators again have primary responsibility for ensuring that the criteria are met at a specific point of the food chain based on HACCP principles, while national authorities must verify that the rules are complied with.
Nutritional criteria
‘Guideline Daily Allowance’ versus the ‘Traffic Light System’. It would seem there is no longer the position as to whether a voluntary scheme will be adopted, but which one.
The criteria underlying these schemes are due to impact not only on front of pack labelling but also on how and when a food product may be advertised.
However, consumer demand, led by education rather than government intervention, is likely to be the deciding factor in changes to food marketing.
Signposting
The UK government proposed a clear straightforward coding system “that busy people can understand at a glance” and be “in common use” by early 2006. Additionally, the nutritional criteria was to be used to identify which foods could be promoted to children.
But the onus on simplicity and uniformity does not fit in with the different nutritional requirements for different members of the population nor for the vast number of different nutrients that are contained in particular foods.
Additionally, different food producers from different European member states, and even between different industries, were likely to adopt different labelling practices. Also, there was likely to be a difference between different sorts of products (i.e. those unpackaged and those from caterers, those from different countries and differing levels of uptake within the UK itself).
The FSA was warned by nutritionalists and industry alike against seeking to adopt a “one size fits all” approach. The main difficulty with one global labelling format that the Government indicated it wished to work towards is that food meets different nutritional needs in different people and, as has been repeatedly raised, there is no such thing as a bad food, just a bad diet. This therefore requires consumer education rather than “quick-fix” labelling initiatives that sought to “warn against” certain foods.
Nevertheless, in November 2005 the FSA indicated that, out of a choice for food labelling of Multiple Traffic Lights (MTL) (red, amber or green for each element of total fats, saturated fats, sugars and salt in a product on packaged food labels) and Colour-coded Guideline Daily Amount (CGDA) formats, they were likely to support the “Multiple Traffic Lights” scheme. The FSA’s consultation on this closed on 8 February 2006. http://www.food.gov.uk/foodindustry/Consultations/consulteng/signpost2005eng
It is assumed that consumers will, quite naturally, associate red with stop and green for go. This would therefore place an onerous warning system on products that, put quite simply, may be essential components to a healthy life. Whilst the consumption of excessive fat, sugar and salt should be discouraged, equally the avoidance of them altogether would cause their own health problems.
It is difficult when presented with the apparent “obesity epidemic” to argue against the stated aims of this “voluntary” process, which are to best inform consumers and advocate healthier diets. But if the traffic lights are followed, with greens here and reds there, it is highly likely there will be a massive traffic jam in the consumer’s thought process.
Instead of treating consumers as able to understand the complexities of a healthy diet or perhaps recommending a “guideline daily allowance” table that would show the food as part of a general diet, the FSA will be defining the totality of a healthy diet in the microcosm of a specific food. The food industry mantra: “there is no such thing as a bad food only a bad diet”, appears to have fallen on deaf ears. But then again it is much easier to demonise a product than take responsibility for education and school playing fields.
Voluntary measures and codes of practice allow the government to go much further than it might otherwise accomplish under any form of legislation. Although there may be consultation, there is no need for any real rigorous debate and a unified position.
UK industry has led the field in implementing nutritional labelling on its products voluntarily and now is approaching the problem of informing consumers in a way which does not mislead them but places their food products in the context of a healthy diet by generally supporting the GDA system. The FSA should catch up.
Office of Communications (OFCOM)
In addition to the nutritional criteria that underpins the signposting system, the FSA has also produced a nutritional criteria for OFCOM. This criteria was developed to seek to reduce the amount of advertising directed at children for foods that are found to be, according to this criteria, high in saturated fat, sugar or salt.
http://www.food.gov.uk/healthiereating/nutlab/nutprofmod
However, foods deemed “high” in certain categories under the signposting nutritional system may not necessarily be deemed “less healthy” under the OFCOM nutritional criteria. Whilst a ‘guideline daily allowance’ table would show the food as part of a general diet the traffic light system is inflexible and shows no context. This may result in a different regime for different sorts of promotions.
EU Health & Nutritional Claims Regulation
The Nutrition & Health Claims Regulation is expected to be adopted in 2006. The Regulation underwent a second reading to the Members of the European Parliament in January 2006. The deadline for submitting amendments was 15 February 2006. A final vote is not expected until the plenary session in May. The proposals on the addition of vitamins and minerals to food (food fortification) are being considered at the same time.
A chronology of the decision-making procedure through which the nutrition and health claims proposal has had to pass is given on the Commission’s Pre-Lex website. http://europa.eu.int/prelex/detail_dossier_re al.cfm?CL=en&DosId=184390
One contentious area of the Regulation is that the EU Commission maintains that foods bearing a claim will automatically be perceived as “good” foods by consumers. The Regulation proposes to restrict the use of claims on some foods based on their own nutritional profile.
An argument against this position is that it is a benefit to consumers to be provided with the information that will assist them in obtaining the most suitable product for them and their chosen lifestyle. Therefore, an important question to ask is whether or not a stricter stance on the promotion of the health and nutritional properties of food products will actually promote consumer choice or end up restricting it.
Foods ascribed a negative nutrient profile may not be able to make health claims, and probably only limited nutritional claims. It is expected that this will usher in a new era of increased research and development for companies seeking to place products in categories in which health claims may be made. The costs and complexity of this would militate against smaller companies and are therefore likely to further restrict consumer choice.
Within 18 months of adoption of the Regulation, the Commission currently aims to have evaluated nutritional profiles in close consultation with stakeholders and based on the opinion of the European Food Safety Authority (EFSA) and in conjunction with the Member States in the Standing Committee for the Foodchain and Animal Health.
In the UK, it may be expected that the signposting and OFCOM nutritional systems will be amended and, to a certain extent, replaced by any subsequent nutritional criteria adopted by Europe.
Obesity debate
Obesity, and in particular the growing number of clinically obese children, has resulted in increasingly emotive language and warnings of an “obesity epidemic” sweeping across the globe.
It is clear obesity is growing but whose responsibility is it and what actions should be taken? The key question for debate is who should bear responsibility – the state, the food industry, or indeed, the individual.
Obesity and industry
The food industry was presented with a choice: innovate or face the consequences by the UK White Paper, ‘Choosing Health’ in November 2004.
The EU’s commissioner for health and consumer protection, Markos Kyprianou, was reported in the Financial Times in January 2005 as stating that the food industry was the fastest, and most effective, route to reducing the obesity problem. “The signs from the industry are very encouraging, very positive. But if this doesn’t produce satisfactory results, we will proceed to legislation.”
Nevertheless, the problems of regulating against obesity are myriad not least because the causes of obesity include the free market and freedom of choice. When the focus is on industry innovations there is less focus on aspects such as education, physical activity and parental responsibility.
Industry has, however, committed a great deal of resources to healthy eating initiatives. The UK Industry body, the Food & Drink Federation (FDF) states that by the end of 2005, it was expected that 36% of products (worth £7.4bn) would have less salt compared to 2004, while 15% (£2.2bn) would contain less fat and 10% (£1.4bn) will have less sugar. It is further stated £33bn worth of products will have full nutrition information on the pack by the end of 2006, and that almost two thirds (worth £15bn) would have salt equivalence information.
Obesity and deceptive marketing litigation
An important additional factor for industry in the decision of how best to promote it’s product will also be the increased prospect of litigation.
The key area in US litigation that has taken the lead in this area is under Consumer Protection Acts and in “deceptive advertising”.
A handful of American lawsuits in 2005 accused food companies of deceptive marketing.
McDonald’s Corp. paid $8.5 million to settle a lawsuit accusing the fast-food giant of failing to inform consumers of delays in a plan to reduce fat in the cooking oil used for its French fries and other foods.
A US lawsuit against food companies including Kraft Foods, General Mills and Kellogg, alleged that “low sugar” labels on cereals were deceptive as the companies replace the sugar with other carbohydrates, thus offering no significant nutritional advantage.
Recent notice of another US lawsuit was provided early in 2006 against Nickelodeon TV network and Kellogg to prevent the marketing of certain foods to children. The plaintiffs are backed by the Centre for Science in the Public Interest and the Campaign for a Commercial-Free Childhood and cited a recent report documenting the influence of marketing on what children eat by the government-chartered Institute of Medicine.
Reports have been made in relation to a proposed American lawsuit against soft drinks manufacturers providing vending machines in schools. The suit is expected to allege that soft drinks in schools breach state consumer protection laws and that vending machines are illegal as an “attractive nuisance”. Additionally, there have been recent reports of potential claims in relation to information provided by McDonalds on the gluten-free properties of their fries. This illustrates the need for careful consideration prior to making any positive voluntary nutritional claims.
The UK has shown itself to be much more robust than America in defeating claims concerning the obvious characteristics of a product that has caused harm, but industry fear of group obesity litigation or the reputational damage that may result from such litigation (the publicity arising from litigation is often the main objective) may mean that additional information and extra caution should be provided despite this.
In Europe, this approach was illustrated by the Union of European Beverages Associations (Unesda) announcing in January 2006 that members would stop directing advertising for soft drinks at under 12’s and there would be “no engagement in any direct commercial activity” in primary schools.
Strictly, manufacturers have a general obligation to warn consumers in respect of product risks. However, in the absence of specific regulatory objections, this obligation exists only where the manufacturer can reasonably anticipate that health hazards will arise during the normal expected use of a product. Nevertheless, sensible defensive steps aimed at limiting possible exposure to litigation will also have a positive impact on a company’s reputation for corporate and social responsibility and a possible impact on insurance premiums.
It is more likely that the increasingly restrictive interpretation of the Advertising Standards Authority, OFCOM and legislation such as the proposed Health and Nutritional Claims Regulation will mean that such litigation is unlikely to spread to the UK.
General product risks
A food company may have the most rigorous HACCP procedure, the best due diligence and checking processes and still have millions lost in sales due to unsubstantiated (and perhaps criminal) allegations.
Malicious tampering
A Nevada couple received lengthy prison sentences in January 2006 for conspiracy to file a false insurance claim and attempted grand theft when they alleged a severed finger had been found in a bowl of Wendy’s chilli in order to extort money from the fast food chain.
Although authorities suspected a hoax, in part because the finger wasn’t cooked, word of the stomach-turning find quickly spread around the world. It is reported that the fast food chain lost $2.5 million in sales in 2005 because of the bad publicity and that dozens of workers at the company’s Northern California franchises were laid off because of the slowdown.
This illustrates how essential it is to have clear quality procedures and checks in place so that fraudulent claims can be quickly exposed and prosecuted but there is a particular vulnerability for food companies to allegations of this sort.
This article first appeared in our food industry law bulletin March 2006. To view this publication, please click here to open a new window.
