Food law | UK Regulatory Outlook January 2024

Food label changes for non-UK FBOs from 1 January 2024

As of 1 January 2024, pre-packaged food sold in Great Britain must include a UK address for the Food Business Operator (FBO). If the FBO is not based in the UK, an address based in the EU or Northern Ireland is no longer acceptable. The UK Food Standards Agency (FSA) has published details for food businesses on the legal requirements around food and packaging.

The government guidance also outlines that the address needs to be a physical address where businesses can be contacted by post; you cannot use an email address or phone number.

Increasing scrutiny and enforcement for greenwashing relating to food

The European Consumer Organisation (BEUC) has recently raised concerns about plastic bottle recycling claims, illustrating the growing scrutiny of environmental claims (and associated risk of these claims) within the EU. In the complaint, the BEUC identified the following three environmental claims that it considered to be problematic because they were vague, factually inaccurate or unsubstantiated: "100% recycled material"; "100% recyclable material"; and the use of circular and green imagery with generic environmental statements. The external alert highlights the growing scrutiny of environmental claims within the EU and, in particular, of claims being used within the food and drinks industry. 

In the UK, the risk for these types of claims is also high. While UK claims are not the subject of the complaint, the rules on environmental claims are similar and are likely to be influenced by the concerns raised by BEUC. This is particularly relevant given that both the UK Competition and Markets Authority (CMA) and Advertising Standards Authority (ASA) are currently looking at green claims, with the CMA currently applying particular focus on food and drink products.

Uncertainty on food waste reporting

As reported in our previous Regulatory Outlook, the UK government has recently U-turned on its decision not to implement mandatory food waste reporting for large companies. However, with the government stating that it will now be reconsidering whether to make food waste reporting mandatory, businesses should be alert for any further developments on this throughout 2024.

One step closer to further UK HFSS restrictions

The next tranche of restrictions on high in fat, sugar or salt (HFSS) products are finally due to come into force in October 2025. This will include the delayed ban on so-called "volume promotions", such as "buy one, get one free" and "get three for the price of two," as well as the advertising ban for HFSS products.

While these restrictions are over a year away, businesses should consider how they will apply to them and the steps they need to start taking to prepare for compliance. Businesses should also keep an eye on what the other UK nations are doing (see our earlier Regulatory Outlook) as Scotland and Wales have also consulted on similar restrictions

With the likelihood of a general election in 2024, businesses should also be aware that this may affect any upcoming changes. Nevertheless, recent reports have suggested that even if Labour were to win the election, Keir Starmer will go ahead with the HFSS bans but has ruled out imposing a tax on HFSS foods.

The Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BPAP) have launched a consultation on how the advertising rules should be reflected in the codes. The consultation is an opportunity for further insight into the current thinking on unanswered questions about the legislation such as what will amount to "paid" advertising for the online restrictions. This is due to close on 7 February 2024, and this may also lead to further or updated restrictions. (See more in the advertising and marketing section.)

UK novel food framework

Last year, the FSA published its review of the approvals process for placing novel foods on the market in the UK. While there have not been any further details on this since our last update, the report highlights that no regulatory changes can be made without public consultation. There are a number of proposals on how the FSA may change novel food regulation. It is expected that there will be developments on this in the run up to the FSA's board meeting in March, which may result in additional guidance or proposals to make substantive regulatory changes.

While the UK is taking measures to push forward the regulation of alternative proteins placed on the market, the position is more mixed internationally.  Some EU Member States, notably Italy and Romania, have already introduced draft legislation to ban lab-grown meats in 2023.

However, food safety authorities in the US, Australia, Korea and Singapore have approved synthetic meat, including "cell-cultured meat". This highlights how the position on alternative proteins differs internationally and businesses should ensure they understand the regulatory framework in different countries before trying to place an alternative protein on a market. (For more information, we recently wrote an article on getting novel foods to market.)

Consultation on new regulatory framework for the use of precision-bred organisms

As detailed in our previous Regulatory Outlook, at the end of 2023, the FSA launched a consultation on proposals for a new framework under the Genetic Technology (Precision Breeding) Act 2023 in England for the regulation of precision-bred organisms (PBOs) used for food and animal feed. This is part of the UK government's wider intention for legislation to be brought forward to "unlock the potential of new technologies to promote sustainable and efficient farming and food production".

The consultation closed on 8 January 2024 and the FSA aims to publish a summary of responses three months from this date. As the responses will help to establish a regulatory framework in England for PBOs for food and feed, we expect that the FSA will provide an update and more details on the proposed regulatory changes in this area later in 2024.

CMA updates on groceries sector review

At the start of 2023, the Competition and Markets Authority (CMA) launched its investigation into unit pricing practices – both online and instore – within the groceries sector (see this earlier Regulatory Outlook). While the investigation continues, the CMA has outlined that it is conducting a further review of compliance with the Price Marking Order 2004. This will involve in-store and online checks to assess whether stores are displaying unit prices correctly and consistently, noting that it will consider whether further action, including enforcement, is required. An update on this work will be published in spring 2024.

This press release also outlines the CMA's latest focus on baby formula, where they have provisionally indicated that prices may have risen by 25% over the past two years, and that this may be more than the price increase of the manufacturers' own input costs.  This theory has yet to be fully tested and the CMA is working with baby formula manufacturers to gain a better understanding of inflation-driven pricing pressures. However, while consumers for other products have mostly been able to locate and switch to cheaper alternatives, the CMA's report notes that there is concern that lack of consumer understanding of the relative merits of infant formula may be leading to parents being unwilling to switch to lower-priced baby formula brands. The CMA therefore plans to undertake further work in the infant formula market and will publish an update on its work in mid-2024, including an update on any proposed changes to the regulatory framework.

The CMA has also announced plans to launch a review of the use of loyalty scheme pricing by supermarkets in January 2024. In particular, it is interested in the impact of grocery loyalty schemes on consumers and competition (where many price promotions are only available to those who sign up for loyalty schemes) and whether regulations that currently prohibit inclusion of baby formula in loyalty schemes might be relaxed.

Insects as animal feed

In 2021, the EU relaxed the rules around insects for feed in regards to pigs and poultry as a result of an opinion from the European Food Safety Authority (EFSA) that the risk of the disease BSE (bovine spongiform encephalopathy) is negligible. Since the UK was not part of the EU when these changes were made, they do not apply in the UK: insects for feed can still only be used for fish.

In 2023, the FSA published research looking into the "future of animal feed" including the possibility of using animal by-products and insects. The research noted benefits such as potentially reducing land-use requirements for protein production, lower levels of generated greenhouse gas emissions and lower overall water requirements for mass insect rearing compared to conventional protein-crop production. The research also highlighted various risks of using insects in animal feed, such as potential contamination of insects (non-native species) into new ecosystems, changes in manure composition of livestock, and high start-up costs.

The FSA is clearly considering the possibility of using insects in animal feed and how best to regulate this process to maintain high levels of feed safety, as well as protecting the wider ecosystem and environmental priorities.

Placing edible insects on the GB market

As noted in our earlier Regulatory Outlook, only edible insect species that are subject to an application for novel food authorisation submitted to the appropriate GB authorities (the FSA and Food Standards Scotland) will be permitted to remain on the market beyond 31 December 2023. The FSA has confirmed it received valid novel-food applications for three species: yellow mealworm (Tenebrio molitor), house cricket (Acheta domesticus) and banded cricket (Gryllodes sigillatus).

As of 1 January 2024, any products containing any other edible insect species will need to be removed from the GB market.

Commission seeks feedback on revision of the definition of engineered nanomaterial in food

The European Commission has opened a feedback period on a draft delegated regulation that updates the definition of "engineered nanomaterial" set out in the Novel Food Regulation (EU) 2015/2283.

The proposed definition will be updated to  "include in its scope the size limit (< 100 nm), applicability (external dimension and shape of the material), the exclusion from the definition of materials with a surface to volume ratio above a certain value, the definitions of ‘particle’, ‘aggregate’ and ‘agglomerate’, and the default threshold value of 50% of particles being at the nanoscale for a material to be considered a nanomaterial". The intention of the updated definition is to reflect the latest technical and scientific updates in this area.

However, BEUC sent a response on 7 December 2023 outlining its concerns that this revision could be "a serious setback for food safety and consumer protection and information". In particular, it has urged the European Commission to lower the threshold value of nanoparticles to as low as possible. It states that this is because the higher the threshold, the higher "the risk that some foods/ingredients containing nanoparticles will slip through the net and escape the safety risk assessment requirements that apply to engineered nanomaterials as novel foods."

The feedback period closes on 12 January 2024. We will provide further updates on the amendments made to the Novel Food Regulation following this.

Food hypersensitivity: improving the provision of allergy information

During the FSA's December Board meeting, a paper was presented on the progress and options for improving the provision of allergy information that outlined proposals for the non-prepacked sector. These include the creation of a presumption that there should be both written information and a conversation to ensure consumers with a food hypersensitivity can make informed decisions on where and what to eat. There has also been press coverage that the FSA is backing calls for "Owen's Law" which will introduce guidance for food businesses on how best to provide written allergen information.

The board agreed that written allergen information should be mandated in the non-prepacked sector and will be writing to ministers to discuss this. We expect an update on this in 2024.

EU proposal on plants obtained by new genomic techniques

In our October issue of the Regulatory Outlook, we outlined that the European Commission had put forward a proposal for a new legal framework for plants developed using new genomic techniques (NGTs). The Commission's impact assessment argued that the current genetically modified organism legislation is not fit for NGTs. This may result in limited uptake in the EU and missed opportunities to meet EU's wider sustainability objectives.

The feedback period closed on 5 November 2023, and we expect the Commission to consider the feedback and to take further steps in 2024 to progress the regulation of NGTs so that the EU can begin to take advantage of NGTs.

Following the introduction of the UK's Genetic Technology (Precision Breeding) Act, it will also be interesting to see whether there will be any further developments for genomic techniques on animals, as the current EU proposals are in relation to plants only.

Could CBD products finally get authorised in 2024?

Over the past year, we have been keeping an eye on the developments in relation to the authorisation of cannabidiol (CBD) products. As reported, the FSA recently said that these products will not be able to be signed off until at least 2024. With businesses waiting for some indication of certainty that they will be able to keep their CBD products on the GB market, it is hoped that further clarification will be given by the FSA in 2024.

In the interim, the current grace period for enforcement applies to CBD products that have submitted a valid novel foods application and appear on the FSA list.

Reforms to the wine sector to begin in 2024

As noted in our previous Regulatory Outlook, the government will introduce a number of reforms for the wine sector in 2024 including increased freedoms on bottle shapes, blending (coupage) of imported wines and piquette; this may therefore lead to an increase in new types of wine being introduced onto the GB market in 2024. As of 1 January 2024, English sparkling wine producers are no longer required to use mushroom-shaped stoppers and foil covers on bottlenecks, and the government have also removed the ban on making and selling of piquette. The government confirmed the change on the 31 December 2023, as well as announcing that they will remove the requirement for imported wines to have an importer address on the label.

In addition, the government has recently announced plans for businesses to be able to sell prepacked still and sparkling wine in 500ml and 200ml sizes as well as a new 568ml "pint" quantity.

Labelling guidance for no- and low-alcohol alternatives expected in 2024

As noted in our previous Regulatory Outlook, the government held a consultation seeking views on whether to raise the threshold set out in guidance for describing a drink as "alcohol free" to 0.5% alcohol by volume (ABV). The current ABV threshold in the UK is 0.05%.

The consultation closed on 23 November 2023, and we expect that updated labelling guidance is published in 2024. Based on the consultation, this may introduce guidance on multiple labelling aspects, including when descriptors such as "alcohol-free", "de-alcoholised, "non-alcoholic" and "low-alcohol" can be used. As the sales of no and low-alcohol alternatives increase, more clarity on labelling guidance is welcomed. For more information on the consultation, please see more here.

UK government to consult on clearer food labels to support British farmers

During his speech at the Oxford Farming Conference on 4 January 2024, Environment Secretary Steve Barclay announced that the government is set to launch a consultation on clearer food labels, notably exploring whether country of origin labelling rules can be strengthened, and making it clearer when imported products do not meet UK animal welfare standards. Mr Barclay said the UK government will “rapidly consult on clearer labelling so we can tackle the unfairness created by misleading labelling and protect farmers and consumers”.  The consultation will consider options such as mandating how and where origin information is displayed and how to clearly differentiate labels of food produced to "lower welfare standards" found overseas. Businesses should be alert to this upcoming consultation and decide whether they would like to respond.

UK government decides not to revert back to imperial units

Back in June 2022, the UK government launched a consultation seeking views on whether to revert back to using imperial units of measurement. However, on 27 December 2023, it confirmed that it would not be going ahead with these changes, having found that only 1.3% of consultation respondents answered in favour of increased use of imperial units, with the remaining 98.7% happy with the continued use of metric units. As such, in 2024 businesses will not need to be considering whether unit changes are on the horizon as metric measurements are to stay in place in the UK. The government's response notes that "whilst the government is not making any changes to the law, new guidance will be published to promote awareness of the current freedoms that exist to display imperial units, alongside a more prominent metric equivalent."