Food law | UK Regulatory Outlook September 2023

Government decides not to implement mandatory food waste reporting

Following its consultation on the option to improve food waste reporting by large food businesses in England, the government has stated that in light of responses "a regulatory approach is not suitable at this time, especially when any additional costs may be passed on to consumers." As such, it has decided to maintain a voluntary approach which will remain in place until at least mid-2025, following which another review will take place.

Nutrition and health claims on food: proposed legislative reforms

The Office for Health Improvement and Disparities has, on 9 August, published a consultation on changes to nutrition labelling, composition and standards from retained EU law. The two key changes that the consultation is seeking views on are to:

1. reform the enforcement procedure for the regulation of nutrition and health claims in England by introducing an improvement notices regime; and
2. revoke 60 Commission Regulations (tertiary legislation) which approved or rejected health claims.

The consultation paper states, in regard to the introduction of improvement notices, that this will align the current enforcement procedure for nutrition and health claims with other food labelling enforcement and will "provide an additional early step for enforcement authorities in England to specify measures to be taken by a business to secure compliance with those requirements" .

The government's proposal to revoke the tertiary legislation is due to the fact these 60 regulations do not serve any current legal purpose, which they add "complicate the statute book". The government notes that revoking this legislation has no legal impact.

The consultation closes on 31 October 2023.

Authorisation of CBD products could be delayed to at least 2024

It has been reported that the Food Standards Agency (FSA) will not be able to sign off cannabidiol (CBD) products until at least 2024. According to reports, the FSA has said it cannot recommend that these products be fully authorised for sale in the UK until the Misuse of Drugs Act is updated, which the Home Office is yet to do.

Updated guidance on food allergen labelling

The FSA has now published its updated guidance on food allergen labelling following the consultation which ran between March and May (see this previous Regulatory Outlook). The updated guidance is advising, among other things, that businesses should only apply a precautionary allergen labelling (PAL) if there is an unavoidable risk of allergen cross-contamination which cannot be sufficiently controlled by segregation and cleaning. Additionally, businesses should specify which of the 14 major allergens the PAL refers to – for example, using “may contain peanuts” rather than a generic “may contain nuts” statement. 

Best practice guidance has also been updated in regard to the use No Gluten Containing Ingredient (NGCI) statements for food businesses in the non-prepacked food sector, notably that businesses should avoid NGCI statements, for example, “this menu has been designed for a non-gluten diet. It’s a selection of dishes that do not contain gluten in their ingredients”. Instead, a “gluten-free” statement should be provided where strict controls ensure that food provided contain no more than 20mg/kg of gluten. 

Natasha Smith, Deputy Director of Policy at the FSA said: "While the use of PAL is voluntary, it is important that it should be as accurate and helpful to consumers as possible when it is applied. The updates to this guidance will help businesses to effectively manage allergens, and ensure those living with food allergies and intolerances get the greatest possible benefit from PAL" .

The Food and Drink Federation (FDF) has also updated its guidance to food business operators on what they should consider when managing changes that impact the allergen information on pre-packaged products, in line with the above.

New voluntary British Standard for whisky

BS 8636 was published on 11 September 2023 and details the methods of analysis which can be used to establish authenticity and consistency within the whisky production process, from distillation and maturation to bottling.

Whilst BS 8636 is not a legal or mandatory requirement, this standard provides an industry standard to assist with achieving consistency in whisky production processes, while also preserving the authenticity of distilling traditions and supporting national and global trade.

Campaigns call for new taxes on HFSS products

It has been reported that health groups recently launched a major bid to introduce new taxes on foods that are high in fat, sugar and salt (HFSS) ahead of the next general election. This is proposed as an extension of the soft drinks sugar levy to cover various new categories, including a £3/kg levy on sugar and a £6/levy on salt.

The context of the "cost of living crisis" has been particularly noted by Anna Taylor, CEO of the Food Foundation, who has said: "The soft drinks industry levy has had a disproportionately positive effect on low-income households, showing a sharper decrease in sugar purchases than in other households. It is vital that revenue from any new levy is used to improve access to nutritious foods to those who face the biggest barriers".

Other restrictions around HFSS, such as the introduction of volume promotions, have been delayed due to the cost of the living crisis, until October 2025 –see our previous Regulatory Outlook ).

Government to launch healthy sales reporting system

It has recently been reported that a food industry working group has put forward plans to the Department of Health and Social Care (DHSC) for a new health reporting system which will require large companies to report on the healthiness of the products they have sold. This would include data on common metrics such as the fat, sugar and salt content (the exact metrics are still being negotiated and finalised). The aim of this system is to incentivise companies to improve the healthiness of their products in a bid to help tackle the obesity crisis. The reports note that the DHSC hopes to introduce the new scheme by next spring, but we await to hear official announcements. 

DRS set to be delayed until 2026

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