Eversheds' Food and Drink Seminar presentation, Leeds - 20 September 2011

1. Eversheds Food and Drink Sector
Seminar
Advice and guidance with real bite
Parmjit Singh, Head of Food and Drink Sector
Eversheds LLP
20 September 2011

2. Food and Drink Sector Seminar
Agenda
• Introductions
• Guide to Better Contracts/Q&A
• Break
• Implementing the new European rules on labelling/Q&A
• Industry Guest Speaker/Q&A
• Lunch
• Managing health & safety: The proactive stance/Q&A
• Changing your operational space/Q&A
• Break
• Embracing social media/Q&A
• Close

3. Guide to Better Contracts
Rachael Newth, Eversheds LLP
20 September 2011

4. Planning – saving time and cost
• What we have seen – a shift in contracting
approach
• Prevention of problems is key
• Early relationship challenges
• SLA issues
• Everything changes over time
• You need:
– practical management of the problems that
will arise
– future proofing

5. Contract Rules / Issues Log / Risk
Matrices

6. Common issues / themes
• Early relationship challenges – customer view
– Due diligence or post contract verification
– Testing before transfer
– Need to tie in with termination for superseded
contracts
– Transformation
• timing
• remedies for failure to achieve it
– Service level / service credit free / ramp up
for “bedding in period”

7. Common issues / themes (Cont…)
• Early relationship challenges – supplier view
– Has the supplier deceived anyone (BSkyB v
EDS)
– What if the supplier‟s discover phase is
inaccurate?
– Objectivity and fairness (is the remedy of any
issue determined by the customer?)
– Difficult/incumbent supplier contracts
– Mitigating early phase risks (no service levels
or credits, etc.)

8. Managing the contract
• Letters of Intent
• What are you buying?
– Description of the Services is key
– Importance of the project language
• Services Levels – drive performance but keep it
simple!
• Remediable action plans

9. Managing the contract (Cont…)
• Change Control Procedure
– Importance of clear procedure
– How will costs be calculated?
• Governance – tie into the CCP?
• Step – in
• Variations

10. Planning for termination
• Who wants to terminate?
• Consider the various termination rights
• Analyse the impact of each termination trigger –
risk matrix
• How long do you need? Different for each trigger
or e.g. between 0 – 180 days?
• A specific right to terminate for breach of service
levels – otherwise risk of remediable breach
relief applying

11. Final Remarks
and Questions?

12. Eversheds Food and Drink Sector
Seminar
Break

13. Implementing the new European rules
on labelling
Elizabeth Hyde, Eversheds LLP
20 September 2011

14. Implementing the new European rules
on labelling
This session will cover:
• The Food Information
Regulation – what is
changing?
• The latest on the
implementation of the
Nutrition and Health
Claims Regulation.

15. The Food Information Regulation
What is changing?
• Minimum font size for • Extension of rules for
mandatory origin of food labelling
information
• Food authenticity
• Nutrition labelling
• Distance selling
• Mandatory
information on • Alcohol
allergens

16. Requirements for mandatory
information
What is mandatory information? Article 9
• The name of the food
• The list of ingredients (extended)
• Allergens / intolerances from a prescribed
list (eg wheat, eggs, mustard, milk etc).
• Quantity of certain ingredients
• The net quantity of the food
• Date of minimum durability or use by date
• Any special storage conditions/conditions of
use

17. Minimum font size for mandatory
information
Mandatory information cont …
• Name / business name and address of the food
business operator
• Country of origin / provenance
• Instructions for use
• The actual alcoholic strength by volume
(beverages containing more than 1.2%);
• A nutrition declaration

18. Requirements for mandatory
information
Article 13
• Mandatory food information must be:
– marked in a conspicuous place
– easily visible, clearly legible
– cannot be hidden, obscured, detracted from or
interrupted by any other written or pictorial
matter or any other intervening material

19. Requirements for mandatory
information
Presentation - minimum font size
• Standard rule - any lower case characters must be
equal to or greater than 1.2mm
• Largest surface area is less than 80 cm squared the
minimum lower case height must be equal to or
greater than 0.9mm
• Exemptions
– glass bottles
– small items (largest surface area is less than 10 cm
squared – only name, allergens, net quantity and
use by date need appear. What about the remaining
information?).

20. Mandatory nutrition labelling
Requirements
• The nutrition declaration will include:
– energy value; and
– the amount of fat, saturates, carbohydrate,
sugars, protein and salt.
• This declaration may be supplemented with details
such as starch, fibre etc (as prescribed in the
Regulation).
• No requirement for front of pack labelling.
• Information to be presented in tabular format where
possible
• Exemptions

21. Mandatory allergen information
Requirements
• Allergens
– includes any ingredient or processing aid
specifically listed in the Regulation (eg wheat,
eggs, fish, milk etc)
– the typeset should clearly distinguish the
wording and be set out in the list of
ingredients
– not required where the name of the food
clearly refers to the substance or product
concerned

22. Mandatory country of origin/ place of
provenance labelling
Requirements
• Mandatory if failure to indicate would mislead
• Extension of the rules for origin of food labelling.
– fresh, chilled or frozen meat from pigs, sheep, goat and
poultry
• If the country of origin of primary ingredient differs then:
– country of origin of the primary ingredient shall also be
given; or
– country of origin shall be indicated as being different to
that of the food
• Implementing rules to be produced within two years of the
Regulation‟s entry into force.

23. Mandatory country of origin/ place of
provenance labelling cont …
Possible future changes
• Country of origin labelling could be extended in
the future (eg to milk, milk used as an ingredient
in dairy products, unprocessed foods, other
meats, single ingredient products, ingredients
which represent more than 50% of a food).
• Commission to
complete an
impact assessment.

24. Food authenticity…
Requirements
• Food authenticity:
– Ban on saying a product does not contain an
ingredient if that kind of product never does –
eg fat in wine gums
– Ingredient substitution
made clear on packaging.
– Added water and protein
made clear on meat and
fish products.

25. Distance selling
Requirements
• All mandatory information must be made
available before purchase (save for „use by date‟
or date of minimum durability).
• All mandatory information must be available on
delivery.
• Catalogue selling must also make required
information clear.

26. Non pre-packed food
Requirements
• Mandatory provision of allergen info
• Implications for restaurants
• Members States could adopt more
stringent requirements and insist
that more particulars are highlighted to the
consumer (eg full list of ingredients).
• Members States may specify how the
particulars are to be made available and,
where appropriate, their form of expression
and presentation.

27. Future Coverage
Alcoholic Beverages
• Alcoholic beverages are
exempt from the
requirements to include:
– An ingredient list; and
– Nutritional
information.
• This is subject for review
three years after
implementation.

28. Timetable for Implementation
• The labelling requirements are to come into
effect 3 years after the adoption of the
legislation.
• The obligations for nutrition labelling will not
apply until 5 years after adoption.
• Do you comply with nutrition labelling already on
a voluntary basis?

29. Issues
• Supply of raw materials change regularly
• Practical management of product
• Cost and practicality of changing labelling and
packaging
• Restrict trade
• Food costs increase as flexibility diminishes?
• Increased bureaucracy for business?
• Are consumers benefiting?
• Difficult to enforce

30. The Nutrition and Health Claims EC
Regulation 1924/2006 transitions into effect
• Nutrition and Health Claims (England) Regulations 2007
• Nutrition and Health Claims may be used in labelling,
presentation and advertising provided they comply with
Regulation 1924/2006.
• Claims must not be:
– False, ambiguous or misleading;
– give rise to doubt about the safety and/or the nutritional
adequacy of other foods
– encourage or condone excess consumption of food
– suggest a balanced diet cannot provide appropriate
nutrients etc.

31. The Nutrition and Health Claims Regulation
1924/2006 transitions into effect
• Nutrition claims
– include “low in fat” / “high in
fibre” etc
– Since 19 January 2010 must be
listed in the Annex
– Annex now includes omega
claims
– More claims are being added
• Health and slimming claims
– More complicated
– More claims have been added

32. Nutrition claims
If a claim is not included in the Annex?
• If a claim is not going to get listed in the Annex
– Use a nutrition table instead
– Rely on consumer knowledge
– Turn to the media

33. Nutrition claims
Future new claims
• Forthcoming amendments to the Annex:
– “no added sugars” – if sugars are naturally
present and are higher than <0.5g/100g or ml
must say “contains naturally occurring
sugars”.
– “no added sodium/salt” – provided it does not
contain more than 0.12mg/100g or ml
– Reduced [name of nutrient] – reduction at
least 30% compared to a similar product.
– “now X % less ” claims – must be 15% less
energy/fat/saturated fat/sodium/salt/sugars
than original product
• valid for 1 year after reformulation

34. Health Claims
Two main streams
1. „General function claims‟. Well understood by
the average consumer and based on generally
accepted scientific data (Art 13.1). These
describe:
- the role of a nutrient or other substance in
growth;
– psychological and behavioural functions;
– slimming or weight control / reduction in
hunger.
2. „New science, proprietary, children‟s health and
disease risk reduction (Arts 13.5 and 14).

35. Health Claims
• Both streams of health claims:
– must go through an approval process.
– will appear on an approved list of authorised health
claims in the Community Register
1. General function claims
– January 2008 - Member States provided the
Community with a list of claims.
– EFSA to provide an opinion on each claim with the
Commission to consider adding them to the Community
Register by January 2010. Deadline not met.
– July 2011 EFSA published final set of opinions
– Commission to adopt final list (non-botanicals) by the
end of 2011.

36. Health Claims
2. „New science, proprietary, children‟s health and
disease risk reduction (Arts 13.5 and 14).
– Claims are made by individual applicants
– EFSA considers the claim and produces an
opinion
– Opinion is then referred to the Commission
Standing Committee

37. Practical application - health claims
If the claim is not approved
• Make a nutrition claim
– and rely on consumer knowledge and the media
• Re-apply, making a better case
• Conduct fresh research and then re-apply
• Find a new proposition to market the product to the
consumer
• Go to court to challenge to EFSA/Commission
– procedural errors
– challenge on basis of free speech (cf USA)
• Use other routes to continue to make the claim

38. Health claims - Using other routes
• Background:
– NHCR applies to “nutrition and health claims made in
commercial communications” (Art. 1.2) in the labelling,
presentation and advertising of foods placed on the market in
the Community” (Art. 3)”

39. Health claims - Using other routes
• The media
– They can carry articles which make the claims
– But
• possible risk if what they do is regarded as
“presentation” or “advertising” or “commercial”
• associated advertising must avoid making the claim
• labelling cannot make the claim
– Is the act of providing information to the media a
“commercial communication presenting or advertising
the food”?
• Where the product is placed in the shop
– Health claim “by association”

40. NHCR - Implications for the Food Sector
• Reduction in the nutrition, • New ability to make a claim
slimming and health claims for disease reduction may
that can be made stimulate the sale of certain
• Impact on unethical foodstuffs and ingredients
competitors
• May reduce demand for • NHCR may stimulate research
certain foodstuffs and directed at developing new
ingredients products, new ingredients or
• Products will be reformulated new strains of crops
so that claims can be made – NB apparent “quasi
or introduced patent” for proprietary
• Changes to the sales claims
proposition for some products

41. Final Remarks
and Questions?

42. Eversheds Food and Drink Seminar
Creating Sustainable Value
Ian Bowles, Group Head of CSR - Premier Foods plc
20 September 2011
42

43. Premier Foods Fast Facts
• Premier Foods is the UK‟s largest food producer
• £2.5 billion annual sales in 2010 delivering £311 million trading profit
• Over 60 UK and Ireland sites, 16,000 employees
• 99.4% of British households bought a Premier Foods brand last year;
• 47.2 million people eat a Premier Foods branded product every two weeks;
• A strategic focus on the UK and on growing our brands
• Not a large multinational FMCG..or a traditional UK mid-cap private label business…we are unique
in the UK food industry
43

44. Top Consumer Food Trends 2011
1. Product reformulations delivering reductions of artificial additives and sodium;
2. Sustainability high on the agenda;
3. Health and well being;
4. Riding out the recession;
5. Expanding tastes (cuisines from around the world);
6. ‘Provenance’;
7. Small indulgences (consumers to forgo large expenses in favour of treats in inexpensive forms);
8. Frozen foods - market beginning to thaw?;
9. Convenience (consumers will continue to demand convenience to fit in with ever busy lifestyles);
10. Obesity - a greater emphasis on foods that deliver long-term weight loss benefits; and
11. A focus on foods with less packaging.
Source: Market Intelligence Department of the British food consultancy firm Leatherhead

45. Top 5 Consumer ‘Sustainability’ Trends 2011
1. Product reformulations delivering reductions of artificial additives and sodium;
2. Health and well being;
3. Provenance’
– Consumer's demand for transparency and information;
– Big consumer push for ingredient origin labelling; and
– 'British' will be the core focus of UK consumers when demanding provenance.
4. Obesity - a greater emphasis on foods that deliver long-term weight loss benefits.
5. A focus on foods with less packaging
Source: Market Intelligence Department of the British food consultancy firm Leatherhead

46. Meeting demand for sustainability in food
products to create added value over competitors
Hovis case study ‘Provenance’: Union Jack pack celebrates Hovis‟ 100% British Wheat
Premier Foods is the only major bread maker to produce its entire branded range from 100% British
wheat:
• One in eight British wheat fields are now grown for Hovis;
• More than a million tonnes of British wheat grown by some 4,000 arable farmers; and
• Worth over £150 million to British farmers.
In 2008, we imported over 20% of the wheat
for Hovis from countries such as Canada
because of quality. This has been replaced
gradually with a specially developed new,
high quality „Red Wheat‟ grown in the UK,
representing an additional £23m being
retained within the UK agricultural industry.
Consumers having a strong affection for Hovis as a classic British brand.

47. Meeting demand for sustainability in food
products to create added value over competitors
Ambrosia case study ‘Provenance’: 100% British Farm Assured Milk
The Ambrosia brand has been capturing the goodness of Devon and nourishing families everywhere
with its creamy products since 1917. The Red Tractor kitemark provides the firmest guarantee that our
milk can be traced right back to the farms from which it came and that the highest standards of food
safety, hygiene, animal welfare and environmental protection are maintained.
We know that 57% of core consumers are
aware of the Red Tractor kitemark and look
for it in store as a sign of quality and
assurance.
We are very proud of this innovation as it is
a first for the UK Ambient Desserts market.

48. Meeting demand for sustainability in food
products to create added value over competitors
Mr Kipling case study ‘Reductions of artificial additive and sodium (salt);
Mr Kipling‟s commitment to quality baking has been confirmed with the decision to move to free range
eggs for all Mr Kipling cakes. We use around 60 million eggs a year in baking Mr Kipling cakes and now
every one comes from hens free to roam. Mums, who buy most of our cakes, are increasingly
concerned about where the ingredients come from that go into the products they buy. As well as free
range eggs, Mr Kipling cakes only use 100% natural flavours and no artificial colours and this gives
them even more reason to buy one of our delicious cakes, slices or tarts for their families.
“We are delighted by Premier Foods’
support for UK and EU free range egg
producers and congratulate them on
working with suppliers to ensure
traceability, safety, quality and good
welfare standards…this shows a real
commitment to ethically sourced food.”
Steve McIvor
Director of Food Business
Compassion in World farming
NOTE: MR Kipling brand products already meets the Food Standards Agency (FSA) 2012 salt reduction targets

49. Meeting demand for sustainability in food
products to create added value over competitors
Hartley’s Jams ‘Provenance’: 100% British Grown Sugar
Hartley‟s was a grocers founded by William Pickles Hartley in Lancashire. When one day a consignment
of jam didn‟t show up, William made his own. By 1885 Hartley‟s was so successful that when they came
to build a new factory at Aintree, they built a village to go with it.
In 2010, Premier Foods bought 85,000mt of sugar. The beet used to manufacture our sugar was sourced
from some 4,500 British sugar beet growers, supplying 7 million tonnes of sugar beet to British Sugar. All
suppliers of the sugar beet to British Sugar are members of the Assured Combinable Crops and Sugar
Beet Scheme. Participants of this scheme must meet various standards including crop protection, seed
treatment, fertiliser use and crop nutrition.
“Last year, our new strategic partnership
approach, with British Sugar, was
recognised when we were jointly presented
with the overall award at the Chartered
Institute for Purchasing and Supply (CIPS)
Awards for the “best example of supplier
relationship management”.

50. Meeting demand for sustainability in food
products to create added value over competitors
Sun-Pat Peanut: „A focus on foods with less Packaging‟
As a signatory to Phase 2 of the Courtauld Packaging Agreement we are committed to reducing
carbon equivalent emissions (CO2e) and wider environmental impact of our own brand packaging.
In 2010, our Sun-Pat peanut brand moved out of a glass jar and into a PET jar. The move was made
after consumer insight showed that our customers actually preferred the PET jar as it was lighter and
wouldn‟t shatter if dropped.
The move to PET delivered the following commercial and environmental benefits:
• Cost saving of £600k
• Packaging weight reduction of 2,404mt;
• Carbon equivalent emissions (CO2e) reduced by 886mt
• 50% recycled content in PET jar
Sun-Pat now used by WRAP as an example of best practice

51. We‟re
backing

52. RSPO Certified Sustainable Palm Oil Procurement
Premier Foods‟ has become the first
major UK food manufacturer to achieve
compliance with the Roundtable for
Sustainable Palm Oil (RSPO) Supply
Chain Certification System.
We currently source 25% of our annual palm
oil requirements through an RSPO certified „physically
segregated‟ sustainable supply chain, with the balance
(75%) being sourced through the GreenPalm Programme.
The RSPO certification guarantees that the criteria for
processing „physically segregated‟ sustainable palm oil
have been met. This means that the we now have the
necessary systems in place to ensure that the 25% RSPO
certified sustainable palm oil we buy is „physically
segregated‟, and fully traceable, through all stages of
refining, manufacture, processing, transportation and
distribution.
From 2012 to 2015 Premier Foods will implement its final
stage, to deliver incremental, year-on-year, increases in
the percentage of “physically segregated” palm oil.
Our goal is to source 100% RSPO certified sustainable
palm, as an ingredient in all the products we manufacture,
by 2015.

53. Exploring the prerequisites to build sustainability
trends into the ingredient procurement process
How do you ensure that sustainability criteria are embedded within the ingredient
procurement process?
In our 2010 CSR Report we included 19 key sustainability
indicators which included the following:
*The balance of our annual palm oil requirements will be sourced through the GreenPalm Certification Scheme

54. Category Sustainability Assessment - Oils and Fats
SUSTAINABILITY “HOTSPOTS” (Risks) BUSINESS REQUIREMENTS & NEEDS
(Think about the Environmental, Ethical or Economic risks and likely impacts) (What do your key stakeholders want?)
1. Land use change in South East Asia leading to environmental 1. To develop a competitive strategy to deliver an RSPO certified
degradation - ancient rainforest clearance for conversion to „sustainable‟ supply of palm oil for use in our branded
agricultural use (palm oil plantations) in Malaysia and products;
Indonesia; 2. To meet the needs and expectations of our customers and
2. Land conversion threatens the extinction of animals, including consumers i.e. retail own label and PF branded products;
large apes „orangutans‟; 3. To protect brand reputation and identify opportunities to
3. Eviction of indigenous population from native lands - human increase brand equity;
rights;
4. Significant increases in GHG emissions from „peat-land‟
conversion;
5. Greenpeace and the WWF actively campaigning on Palm Oil
procurement - targeting BIG brands - i.e. Hovis, Kipling,
Note: Please use the CSR Hot Spot Assessment tool to identify where there might be
Ambrosia;
issues within the category
KEY SUSTAINABILITY ACTION PLAN
KEY OPPORTUNITIES & STRATEGIC (I.E. What are your proposed actions that will help you drive a more Sustainable
Category Plan and
OPTIONS in the process help to Protect the Business, Grow the Brands, Reduce costs or help
drive greater
1. To adopt a leadership role on sustainable palm oil Supply Chain efficiency )
procurement in order to develop a „point of difference‟
1. To source 100% RSPO certified sustainable palm oil by 2015;
and competitive advantage;
2. To source 100% of our annual palm oil needs through the
2. Initial procurement focus on drive brands;
GreenPalm Certification Programme in 2010;
3. To include the new RSPO certified „kitemark‟ on product
3. To increase, YOY, the amount of RSPO certified „physically
packaging;
segregated‟ palm oil from a 2011 baseline - 25% in 2011;
4. To gain the trust, advocacy and positive goodwill of the
4. To work with key suppliers in the development of RSPO certified
NGO community campaigning against BIG brands on
sustainable palm oil fractions i.e. emulsifiers
palm oil procurement.
5. Where required, to have our manufacturing sites „chain of
custody‟ audited by a third party certification body i.e. BM Trada
6. To regularly meet key stakeholders, including both Greenpeace
and the WWF, to keep them abreast of our approach to palm oil
procurement ;
7. To play an active role in the „Unilever Coalition‟ on sustainable
palm oil procurement ; and
8. To deliver against commitments given as a member of the
Roundtable for Sustainable Palm Oil (RSPO).

55. Category Sustainability Assessment - Glass Packaging
SUSTAINABILITY “HOTSPOTS” (Risks) BUSINESS REQUIREMENTS & NEEDS
(Think about the Environmental, Ethical or Economic risks and likely (What do your key stakeholders want?)
impacts)
1. Quality container glass / fit for purpose (operations)
1. Courtauld 2 / Customer drive towards weight 2. Low cost container glass (commercial / shareholders)
reduction. 3. Innovation / exclusivity (marketing / customers)
2. Courtauld 2 / Customer drive towards increased 4. Flexibility / JIT / supplier stock holding (operations /
recycled content. sales)
3. Format substitution 5. Reduction in supply chain risk / use suppliers with safe
4. Energy intensive process (manufacturing & working practices, who present low risk to Premier (e.g.
distribution). reputational damage)
5. Health & Safety record at glass suppliers (glass 6. Suppliers are Sedex registered
manufacturing potentially high risk operation due to 7. Light weighting (commercial / CSR / customers)
molten glass, glass fragments, high temperatures, risk 8. Alternative formats (commercial / sales / CSR /
of fire etc) customers)
6. Carbon emissions tax increase - impact on supplier
KEY OPPORTUNITIES & STRATEGIC
base.
KEY SUSTAINABILITY ACTION PLAN
7. Carbon footprint reduction - impacts sourcing options
OPTIONS
1. Progress Light-weighting Opportunities
1. Lightweighting 2. Second phase Rationalisation process
2. Rationalisation 3. Brand opportunities to move to coloured glass
3. Format Substitution 4. Continue to review format substitution i.e. Sun-Pat PET”
4. Backhauling 5. Target 100% glass backhauling by end of 2012
5. Local Sourcing 6. Work with brands & commercial teams on product labelling
6. Increased Level of Recycled Content and declarations – agree logos‟s & on pack claims
7. Review glass suppliers health & safety performance 7. Review health & safety record of glass suppliers and share
,key metrics and share best practice best practice where appropriate
8. Increased Consumer Awareness of environmental 8. Ensure all category suppliers are Sedex registered
benefits
(i.e. Infinitely recyclable format)

56. The Impact of the recession on Consumer
demand for ‘Sustainable’ products
„Price is still King’
Consumers want environmentally sound and ethically sourced products…but not at any price.
In 2009/10 organic sales fell from £1.84bn (down from a record high of £2.1bn in 2008) to £1.73bn.
However, despite the fall there was strong year-on-year growth in sales of organic beef (up 18%),
organic baby food (up 10.3%) and organic textiles (up 7.8%).
In the midst of the recession, Fairtrade sales actually increased by 43% in the UK.
Key Learnings 2011
• Add value…not cost - consumers are „riding out the recession‟;
• Provenance…'British' is a core focus of UK consumers;
• „Show me the product…not the packaging‟ - focus on using less packaging; and
• Embed sustainability trends into procurement processes.

57. Premier Foods - FTSE4Good Listing
In March 2010, Premier Foods were included, for the first time, in
the FTSE4Good Index Series.
The FTSE4Good Index Series has been designed to objectively
measure the performance of companies that meet globally
recognised corporate responsibility standards.
Transparent management and criteria make FTSE4Good a
valuable tool for consultants, asset owners, fund managers,
investment banks, stock exchanges and brokers when assessing or
creating responsible investment products.
The index is designed to make corporate responsibility standards of
companies more visible to investors and promote investing in
companies who have met the stringent social and environmental
criteria set by FTSE4Good.

58. Thank you
Ian Bowles
Group Head of CSR
m: 07971 322163
e: ian.bowles@premierfoods.co.uk

59. Final Remarks
and Questions?

60. Eversheds Food and Drink Sector
Seminar
Lunch

61. Managing Health and Safety
The Proactive Stance
Ashleigh Birkett, Eversheds LLP
20 September 2011

62. Aims and objectives
• Reminder of key legislative provisions
• What is “reasonable practicability”?
• Core elements of safety management system
• Pitfalls v proactive steps
• Culture

63. Key Health & Safety offences

64. Key Legislation
• Section 2 HSWA 1974
• Section 3 HSWA 1974
• Regulations
Duties flow from the main
legislation for individual
offences and for
organisation specific
criminal offences

65. Qualified Duty
• Regulation 40:
– …it shall be for the accused to prove (as the case may
be) that it was not practicable or not reasonably
practicable to do more than was in fact done to satisfy
the duty or requirement…

66. What is reasonable practicability?
• Balancing exercise
• Risk – what is the potential for harm and the
chance of it occurring?
• Forseeability – the more forseeable, the graver
the offence
• Ultimately only the Court can decide…

67. Successful Health and Safety
Management
The Core Elements

68. HSG 65
• “…organisations need to manage health and
safety with the same degree of expertise and to
the same standards as other core business
activities, if they are to effectively control risks
and prevent harm to people.”

69. HSG 65
• Current guidance
• Consultation on proposed changes to HSG 65

70. Core Elements of Management
System
• Plan – determine your policy and plan its
implementation;
• Do - organise and implement;
• Check – measure performance;
• Act – review performance. What are the lessons
learned?

71. Pitfalls
What will prevent the system from working as it
should?

72. Pitfalls – low level
• Policies and procedures inadequate
• Training not up to date
• Culture amongst employees of not following
procedures
• Monitoring breaks down – not a localised failure
• Internal/external audits not acted upon
• Minutes and other corporate documents tell a
poor story
• Previous similar incidents – no lessons learned

73. Pitfalls – high level
• Poor industrial relations - where to find reliable
witnesses
• Customer/publicity aversion - a commercial
factor but often important
• Cost v prospects of success
• Perception of harm to relationships with food
authority/local EHOs

74. What are the consequences of getting it
wrong?

75. Health and Safety Offences 2004/2005
Penalties imposed by the courts following work-related fatalities
Year of verdict Total penalty Average penalty Average penalty per
per case conviction
1999/00 £1,618,250 £24,896 £16,683
2000/01 £1,577,250 £21,030 £13,597
2001/02 £4,376,300 £37,727 £24,586
2002/03 £2,387,137 £31,410 £23,176
2003/04 £3,540,300 £43,707 £27,876
2004/05p £2,867,250 £42,795 £29,867
Feb-Apr 10 £1,640,000 £136,666 £109,333

76. Proactive Steps
Improving Culture and Commitment

77. Culture – which is your organisation?
Generative
Safety is how we do business around here
Proactive
We work on problems that we still find
Calculative
We have systems in place to manage all hazards
Reactive
Safety is important, we do a lot every time we have an accident
Pathological
Safety? Who cares as long we we’re not caught

78. Challenge your organisation …
• What could go wrong?
• Why won‟t that happen?
– today?
– tomorrow?
• What else should we do?
• What else could we do?
• Are we improving?
• Is the safety management
system working as it should?

79. Brainstorming…
1. How are you able to demonstrate the company‟s commitment to health and safety?
2. How are you ensuring all staff – including the board – are sufficiently trained and
competent in their health and safety responsibilities?
3 How confident are you that your workforce, particularly safety representatives, are
consulted properly on health and safety matters, and that their concerns are
reaching the appropriate level?
4 What systems are in place to ensure your organisation‟s risks are assessed, and that
sensible control measures are established and maintained?
5 How well do you know what is happening on the ground, and what audits or
assessments are undertaken to inform you about what your organisation and
contractors actually do?
6 What information does the company collate regularly about health and safety, eg
performance data and reports on injuries and work-related ill health?
7 What targets have you set to improve health and safety and do you benchmark your
performance against others in your sector or beyond?
8 Where changes in working arrangements have significant implications for health and
safety, how are these brought to the attention of the board?

80. Proactive Steps
1. Review your systems and processes – legal
audit?
2. Consider training of “senior managers”
3. Engage the business in H&S
4. Documents and Record Keeping
5. Risk assessments
6. Culture

81. Health and Safety Hot Topics
• Work at Height
• Respiratory risks
• Asbestos risks
• Managing Contractors

82. Final Remarks
and Questions?

83. Food & Drink Annual Seminar
Changing your Operational Space
Naeema Choudry & Ben Wharin, Eversheds LLP
20 September 2011

84. Changing your Operational Space
• People
– Managing Redundancies
– Redundancy selection criteria
– Agency Workers
– Implementing pay cuts
• Property
– Sale
– Getting out of leases
– Residual liabilities

85. Changing your Operational Space
• Managing Redundancies
– Selection
– Consultation
– Alternative employment

86. Selection Pools
• Disability Discrimination & Reasonable
Adjustments
– Lancaster -v- TBWA Manchester UK EAT
– Employee suffered from panic and social anxiety disorder
– 3 selection criteria focused on communication skills
– Does an employer have a duty to make reasonable
adjustments to redundancy selection criteria applied to a
disabled employee?

87. Selection Pools
• Bumping Redundancy
– Fulcrum Pharma (Europe) Ltd -v- Bonassera and
Other
– Importance of considering whether a redundancy
pool should be constituted on a “vertical” rather
than a “horizontal” basis
– Onus on employer to raise issue

88. Consultation
• Age Discrimination and Consultation
– Woodcock -v- Cumbria Primary Care Trust
– Does it amount to age discrimination to dismiss
someone without proper consultation so that the
notice period expires before the employee qualifies
for enhanced pension payments?
– Considering the defence of justification

89. Collective Consultation
• In what circumstances can employer can treat
employee representatives as elected without
holding a formal ballot
– Phillips -v- Xtera Communications Ltd
– Number of candidates for employee
representatives in a collective redundancy
situation exactly matches the number of vacancies
does the employer still have to hold a ballot?

90. Alternative Employment
• Regulation 10 of the Maternity and Paternity
Regulations
• Alternative employment and redundancy of employee
on maternity leave
• Trial periods - Optical Express Limited -v- Williams

91. Agency Workers and Redundancy Laws
• Obligation to inform and consult in a collective
redundancy situation will include information
about agency workers
• Access to information about vacancies

92. Alternatives to Redundancy
• Reducing employee headcount
• Work stoppages
• Pay Reductions
• Secondments
• Early Retirement

93. Sale Options
• Sale
• Sale and Leaseback
Owner Buyer of Freehold
(Landlord)
Lease back to original
owner (Tenant)

94. Getting out of Leases
Breaks
Landlord s.25/
Breaches s.26/
s.27
Alienation

95. Break Options
Drafting Service Conditionality Loose Ends
• Insurance
• By when do the
conditions need
• Correct Parties • Vacant
to be complied
Possession
• Method with?
• Searches
• Return of Lease
• Place • Use of
• Calculation of correspondence
Dates • Return of Keys
• Timing to put landlord in
a more difficult
• Interpretation • Dilapidations
position
• Confirmation

96. Alienation
How to make the best application

97. Landlord Breaches
Possible (usually tricky) options
Repudiatory breach by Landlord e.g. derogation from grant or breach
of quiet enjoyment
Has the Lease been affirmed?
No Yes
Tenant may be
able to terminate
the Lease

98. Residual Liabilities – Dilapidations
Injunctions Damages Forfeiture Re-Entry to
Undertake Works
• Is notice
validly served?
• Leasehold
Property • Leasehold
• Can some of
(Repairs) Act Property
the work be
1938? (Repairs) Act
excluded?
1938?
• Can the
• Rainbow v • Can entry be
landlord show • S.146 LPA 1925
Tolkenhold refused?
that there is a
diminution in • Waiver
• Can the
value to its
landlord be
interest? • Right to relief
deterred based
(Section 18
upon the
LTA 1927)
practical
difficulties?

99. Final Remarks
and Questions?

100. Eversheds Food and Drink Sector
Seminar
Break

101. Embracing social media
Andrew Terry, Eversheds LLP
20 September 2011

102. What we will cover
• What do we mean by social media?
• Areas of corporate risk
• Third party terms of use
• Employee social media policies
• Third party comments
• Defamation
• Notice-and-take-down
• Privacy
• ASA
• Social media guidelines

103. What do we mean by social media?
• A “conversation” v “one-way traffic”
• Wide ranging:
– Social and business networking sites
• e.g. Facebook, LinkedIn, MySpace, Bebo
– Blogs: a “web log”
• e.g. Twitter, Blogspot, Square Space
– Digital media sharing
• e.g. YouTube, Flickr, Slideshare
– Wiki
• BUT much overlap and rapidly changing
• AND your own website

104. Areas of corporate risk
• Another means of corporate communication BUT
lack of control, brevity and casual use increase
reputational risk:
– defamatory comments
– misleading advertising
– disclosure of private information
– employee misconduct
• Manage by:
– adopting appropriate internal policies
– reviewing regularly
– devoting adequate resources
– complementing established marketing

105. Third party terms of use
• Twitter
– No distinction between corporate and individual users
– Expressly encourages broad re-use and copying of content
• Facebook
– Specific promotion guidelines (no use of Facebook features as
entry mechanism e.g. “liking” of a Page) (clause 3.9)
– No collection of user content or information using automated
means (clause 3.2) or without consent (clause 5.7)
• Linkedin
– No adaption or modification of works based on other user‟s
content
– No unsolicited or unauthorised advertising or promotional
materials

106. Employee social media policies
• Risk of abuse, data leaks, time wasting
• Issues can still arise if comments out of hours
and on own equipment
• Need clear policy for misconduct and
consequences of breach
• Adequate training and agreeing social media
(and email) “etiquette”

107. Third party comments
• Monitor third party sites for damaging comments
and IP infringement
• Monitor sites/content under your control (even
though you may lose “intermediaries” defence)
• Identify and communicate with disaffected
customers
• Internal response team
• Legal intervention
– Defamation law
– Notice-and-take-down procedures
– Privacy rights

108. Defamation
• Wide protection – any statements which make
readers think worse of a person or organisation
• Publication
• Balance of power in Claimant‟s hands
• Defences available (justification, fair comment,
qualified privilege)
• Aim – vindication (damages, apology, retraction,
costs)
• Clear potential for vicarious liability

109. Notice-and-take-down procedures
• Defamation actions: author, editor, publisher
– Identifying the author
– Likelihood of relief against bloggers etc
– Position in meantime
• Role of ISPs and other “intermediaries”
– E-Commerce Regs 2002 (Reg.17-19) -
defence for mere conduit, caching or hosting if
no actual knowledge
– s. (1) Defamation Act - if not an author,
publisher etc and no reason to believe
defamatory
– May lose protection if have editorial control
• Put on notice (including for IPR infringers)

110. Privacy rights
• Right to respect for private and family life, home, health and
correspondence – Article 8 ECHR
(1) Is it private information?
(2) Is there a reasonable expectation of privacy?
(3) Is there a genuine public interest?
• “Private Information”
– emotional relationships / family / friends
– job performance
– business information
• Injunctions v “Super Injunctions”

111. ASA : online remit extension
“Advertisements and other marketing
communications by or from companies,
organisations or sole traders on their own
websites, or in other non-paid-for space online
under their control, that are directly connected
with the supply or transfer of goods, services,
opportunities and gifts”
• Primary intent is to sell something though not necessarily
immediately
• Has it appeared in the same or very similar form in third
party space?
• New sanctions – enhanced name and shame, removal of
adverts

112. ASA : food & drink
• 2010 - 3rd most complained about sector
• Dedicated sections of CAP/BCAP Codes (Rules
13/14)
• Special restrictions for HFSS
• Reflect wording and requirements of EC
Regulation 1924/2006 on Nutrition and Health
Claims
• General health claims – grace period until
Community Register is up and running then
must be accompanied by approved health claim
• Nutrition claims - as per the Annex to the
Regulation
• But no “immunity” - all adverts will still be
assessed and interpreted by ASA

113. ASA : user generated content
• UGC is content created by private individuals –
outside remit
• But UGC falls within remit if adopted and
incorporated within own marketing
communications
• Customer reviews – inside or outside remit?
• Content excluded from remit extension:
– press releases and other public relations
material
– editorial content
– natural listings
– heritage advertising

114. Content of social media policies
• who writes the copy?
• tone of company “voice”?
• what is the posting process from inception to
publication?
• how often do you update or post?
• who monitors and how often?
• policing in moderation (abuse v negative
comments)
• correcting mistakes quickly
• ensure enforcement is uniform

115. Final Remarks
and Questions?