As demonstrated in our previous blogs, food businesses face many challenges when marketing their products both in terms of labels and claims made when promoting and advertising their business and products. Here, we discuss whether there are any solutions to navigating the minefield that is food labelling law.
Recap of food labelling challenges
The landscape of eco-labelling and green claims is evolving rapidly with the DMCC Act's enhanced regulatory framework. Businesses must ensure their claims are truthful, clear, and backed by credible evidence to comply with the Green Claims Code and avoid significant penalties. The CMA's strengthened enforcement powers highlight the need for diligence in environmental marketing and indeed any marketing of products, services and the business itself.
The new and proposed laws relating to green claims and the complex rules concerning allergen labelling are just two examples which highlight how complicated food labelling law is. Consumers now expect accurate, reliable information as standard. As consumer expectations continue to grow, we will see ever greater obligations placed on businesses to meet these demands. Food businesses must rise to the challenge as, leaving aside the risks of failing to meet these stringent legal requirements, consumers are likely to “vote with their feet”. Those businesses who fail to meet consumer requirements will find themselves exposed.
Potential solutions
In order to ensure you comply with the myriad of legal requirements, we would always advise that you seek specialist regulatory advice from an expert or consultant in the area you need help with and if necessary, specialist legal advice. You may be thinking that, given the difficulties in producing labels and making claims which won't be judged as misleading, it might be better not to say anything at all. However, saying nothing about your green credentials can also lead to allegations of ‘greenhushing’. Also, consumers expect to know and understand how “green” your products and business are and so saying nothing could lead to loss of market share.
Following the Green Claims Code and having all labels and claims fully backed up with reliable, up to date and extensive evidence is a good way to ensure that your claims will stand up to scrutiny. If you can’t fit all the information on a single label or claim, which is likely to always be the case, the additional and supporting explanations of your claims should be readily and publicly accessible – for example on your website. One thing we have seen done which appears quite effective is having a QR code on a product label which will direct you to a website with the further information.
The very best way to protect your business against enforcement action and potential prosecution is to enter into a Primary Authority Partnership (“PAP”) with a local authority who can review your proposed labels and green claims and provide you with advice and ultimately sign off that they are compliant with the relevant rules. This will generally involve approaching the local authority who regulates you about entering into a PAP, but it doesn’t have to be your local authority it can be another authority. Some authorities have specialist teams for different regulatory areas.
A PAP involves a set fee for a certain number of hours of advice then additional hours of advice charged at an hourly rate. Once advice is received and followed and your labels or claims have been signed off by your Primary Authority Partner, you cannot be enforced against or prosecuted in relation to the compliance of those labels or claims, provided you have followed the advice. For eco-labels and green claims, given that what the average consumer may deem to be “misleading” is a moveable feast it would probably be sensible to be reviewing any claims/labels at least on a yearly basis and seeking input /sign off from your Primary Authority Partner following such reviews. Your Primary Authority Partner will also be able to assist in advising on how often you need to undertake such reviews in order to be “compliant”.
PAP covers all sorts of Trading Standards and Environmental Health matters, so this arrangement will mean that any procedures you have in place for food hygiene and allergen control can also be checked, advised on and signed off by your Primary Authority Partner. This is a great tool for providing certainty on compliance with regulations.
To summarise, the best ways to protect your business are:
- Get specialist advice
- Follow the Green Claims Code and any other relevant labelling guidance
- Consider entering into a Primary Authority Partnership with a local authority
If you would like further information or advice about labelling or allergen law, please contact our Regulatory Team.