Food and Drink seminar presenations slides - Birmingham, 4 October 2011

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

2. Food & Drink Annual Seminar
Changing your Operational Space
Lisa Barge & Wie-men Ho, Eversheds LLP
4 October 2011

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

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

5. 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?

6. 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

7. 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

8. 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?

9. 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

10. 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

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

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

13. Getting out of Leases
Flexibility Timing
•Bargaining Power
•Critical?
•Strength of Legal
Breaks •Flexible on
Position
Timing?
•Ability to Commit
•Cost of delay
•Branch Performance s.25/
Landlord
s.26/
Litigation Costs
Breaches
s.27
Strategic
Importance
•Cost/Benefit
•Consider
•Recoverability Alienation
Surrenders
•Streamlining
•Quickest Route to
exit?

14. 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

15. Alienation
How to make the best application
The Application The Response
• Compliant with 1988 Act • Is it in time? And does it comply with the
• Includes undertaking 1988 Act?
• Encloses references/accounts • If not – you may be able to proceed
• Warns of consequences without consent
• Seeks to obtain consent via a signed • Implications/risks
letter.
The Outcome The Proceedings
• Consent obtained; or • Fixed fee
• Issue proceedings; or • 3-4 months if part 8 claim
• Proceed anyway. • Create tactical pressure
• Can recover damages.

16. 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

17. 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?

18. Final Remarks
and Questions?

19. Eversheds Food and Drink Sector
Seminar
Break

20. Managing Health and Safety
The Proactive Stance
Ashleigh Birkett, Eversheds LLP
4 October 2011

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

22. Key Health & Safety offences

23. 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

24. 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…

25. 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…

26. Successful Health and Safety
Management
The Core Elements

27. 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.”

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

29. 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?

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

31. 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

32. 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

33. What are the consequences of getting it
wrong?

34. 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

35. Proactive Steps
Improving Culture and Commitment

36. 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

37. 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?

38. 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?

39. 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

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

41. Final Remarks
and Questions?

42. Implementing the new European rules
on labelling
Elizabeth Hyde, Eversheds LLP
4 October 2011

43. 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.

44. 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

45. 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

46. 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

47. 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

48. 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?).

49. 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

50. 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

51. 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.

52. 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).
• Commission to
complete an
impact assessment.

53. 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.

54. 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.

55. 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.

56. 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.

57. 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?

58. 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

59. 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.

60. 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

61. 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

62. 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

63. 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).

64. 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.

65. 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

66. 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

67. 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)”

68. 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”

69. 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

70. Final Remarks
and Questions?

71. Eversheds Food and Drink Sector
Seminar
Lunch

72. Guide to Better Contracts
Rachel Newth, Eversheds LLP
4 October 2011

73. 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

74. Contract Rules / Issues Log / Risk
Matrices

75. 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”

76. 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.)

77. 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

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

79. 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

80. Final Remarks
and Questions?

81. Embracing social media
Andrew Terry, Eversheds LLP
4 October 2011

82. 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

83. 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

84. 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

85. 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

86. 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”

87. 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

88. 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

89. 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)

90. 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”

91. 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

92. 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

93. 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

94. 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

95. Final Remarks
and Questions?