Healthy eating – the changing shape of food and drink

With another Olympic Games around the corner, healthy diets are likely to have a renewed focus.  The nation’s interest in the nutritional qualities of food is on the up and our buying habits are changing.  Only last year protein powders were added to the basket of goods used to calculate consumer price inflation in the UK.  Our love affair with sugar has been a bittersweet story in the media.

Those determined to change their body shape and performance are taking a closer interest in the nutritional qualities of food and drink that they consume. Foods or drinks claiming particular characteristics will be especially attractive to budding athletes, nursing mothers, the elderly and their carers.  Producers will be keen to appeal to those consumer markets.

There is further evidence to indicate an ever more crowded landscape in which producers need to be particularly wary as they seek differentiation.

First, producers will be keen to make themselves heard amongst the noise.  Advertising continues to have a significant role in the food and drink industry.  Recent decisions by the Advertising Standards Agency (ASA) show that it too is flexing its own muscles more readily.  In one example, an expensive radio advertisement promoting the drinking of spirits was brought to the attention of the ASA by only one listener: that was enough to put an end to the advert.

Second, the indications (as evidenced by the Office for National Statistics) are that there has been a consolidation in the food and drinks industry.  The consolidation is likely to continue as retailers increase their volumes of sales amid falling prices.  Food and drink producers will need to be conscious of the legislation that targets the hyperbole that can accompany new products particularly those with nutritious, healthy or other enhancing qualities.

Many producers are already providing nutritional information on a voluntary basis.  This will become mandatory by 13^th December 2016.

Lawyers can have an important role to play in helping producers go to the market, both behind the scenes and more overtly.  Aside from advertising being checked, supply contracts (often not seen by the consumer) need to be robust.  Where particular values are advocated by the producer, more sophisticated consumers may seek comfort that those same values are consistently applied throughout the supply chain.  Such consistency may even be a selling point.  Contracts should be checked over to ensure that the requisite consistency is in place.

There have been significant recent changes in the way businesses may attract the attention of consumers and the publicity materials that have fed into the decision making processes of consumers.  All of these should be checked to ensure that the changes (including the Consumer Rights Act 2015) are reflected.  The costs for doing so could far outweigh the expense of putting things right after the event.

Gavin Poole is a partner and based in the corporate team in Truro. If you have questions with regards to food safety guidelines, please call Gavin on 01872 265100 or email corporate.cornwall@stephens-scown.co.uk.