Food and Drink Seminar, Leeds - 20 September 2011

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

Food and Drink Sector Seminar

• 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

Agenda

Guide to Better Contracts

Rachael Newth, Eversheds LLP

20 September 2011

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

Contract Rules / Issues Log / Risk Matrices

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– Need to tie in with termination for superseded contracts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”

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.)

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

Managing the contract (Cont…)

• Change Control Procedure

– Importance of clear procedure

– How will costs be calculated?

• Governance – tie into the CCP?

• Step – in

• Variations

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

Final Remarks

and Questions?


Break

Implementing the new European rules on labelling

Elizabeth Hyde, Eversheds LLP

20 September 2011

Implementing the new European rules on labelling

• The Food Information Regulation – what is changing?

• The latest on the implementation of the Nutrition and Health Claims Regulation.

This session will cover:

The Food Information Regulation

• Minimum font size for mandatory information

• Nutrition labelling

• Mandatory information on allergens

• Extension of rules for origin of food labelling

• Food authenticity

• Distance selling

• Alcohol

What is changing?

Requirements for mandatory information

• 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

What is mandatory information? Article 9

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

Minimum font size for mandatory information


• 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

Article 13


• 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?).

Presentation - minimum font size

Mandatory nutrition labelling

• 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

Requirements

Mandatory allergen information

• 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

Requirements

Mandatory country of origin/ place of provenance labelling

• 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.

Requirements

Mandatory country of origin/ place of provenance labelling cont …

• 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.

Possible future changes

Food authenticity…

• 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.

Requirements

Distance selling

• 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.

Requirements

Non pre-packed food

• 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.

Requirements

Future Coverage

• Alcoholic beverages are exempt from the requirements to include:

– An ingredient list; and

– Nutritional information.

• This is subject for review three years after implementation.

Alcoholic Beverages

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?

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

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.

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

Nutrition claims

• 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

If a claim is not included in the Annex?

Nutrition 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

Future new claims

Health Claims

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.

Two main streams

2. „New science, proprietary, children‟s health and disease risk reduction (Arts 13.5 and 14).

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.

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

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

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)”

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”

NHCR - Implications for the Food Sector

• Reduction in the nutrition, slimming and health claims that can be made

• Impact on unethical competitors

• May reduce demand for certain foodstuffs and ingredients

• Products will be reformulated so that claims can be made or introduced

• Changes to the sales proposition for some products

• New ability to make a claim for disease reduction may stimulate the sale of certain foodstuffs and ingredients

• NHCR may stimulate research directed at developing new products, new ingredients or new strains of crops

– NB apparent “quasi patent” for proprietary claims

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

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

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

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

Top 5 Consumer ‘Sustainability’ Trends 2011

Source: Market Intelligence Department of the British food consultancy firm Leatherhead

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.

Meeting demand for sustainability in food

products to create added value over competitors

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.



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.



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.

NOTE: MR Kipling brand products already meets the Food Standards Agency (FSA) 2012 salt reduction targets

“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

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”.



http://jpaintz.files.wordpress.com/2011/06/hartleys1.jpg

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



We‟re backing

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.

Exploring the prerequisites to build sustainability

trends into 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

How do you ensure that sustainability criteria are embedded within the ingredient

procurement process?

Category Sustainability Assessment - Oils and Fats

SUSTAINABILITY “HOTSPOTS” (Risks)(Think about the Environmental, Ethical or Economic risks and likely impacts)

1. Land use change in South East Asia leading to environmental degradation - ancient rainforest clearance for conversion to agricultural use (palm oil plantations) in Malaysia and Indonesia;

2. Land conversion threatens the extinction of animals, including large apes „orangutans‟;

3. Eviction of indigenous population from native lands - human 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, Ambrosia;

BUSINESS REQUIREMENTS & NEEDS(What do your key stakeholders want?)

1. To develop a competitive strategy to deliver an RSPO certified „sustainable‟ supply of palm oil for use in our branded products;

2. To meet the needs and expectations of our customers and consumers i.e. retail own label and PF branded products;

3. To protect brand reputation and identify opportunities to increase brand equity;

KEY OPPORTUNITIES & STRATEGIC OPTIONS

1. To adopt a leadership role on sustainable palm oil procurement in order to develop a „point of difference‟ and competitive advantage;

2. Initial procurement focus on drive brands; 3. To include the new RSPO certified „kitemark‟ on product

packaging; 4. To gain the trust, advocacy and positive goodwill of the

NGO community campaigning against BIG brands on palm oil procurement.

KEY SUSTAINABILITY ACTION PLAN(I.E. What are your proposed actions that will help you drive a more Sustainable

Category Plan andin the process help to Protect the Business, Grow the Brands, Reduce costs or help

drive greaterSupply Chain efficiency )

1. To source 100% RSPO certified sustainable palm oil by 2015;2. To source 100% of our annual palm oil needs through the

GreenPalm Certification Programme in 2010;3. To increase, YOY, the amount of RSPO certified „physically

segregated‟ palm oil from a 2011 baseline - 25% in 2011; 4. To work with key suppliers in the development of RSPO certified

sustainable palm oil fractions i.e. emulsifiers5. Where required, to have our manufacturing sites „chain of

custody‟ audited by a third party certification body i.e. BM Trada6. 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).

Note: Please use the CSR Hot Spot Assessment tool to identify where there might be issues within the category

Category Sustainability Assessment - Glass Packaging

SUSTAINABILITY “HOTSPOTS” (Risks)(Think about the Environmental, Ethical or Economic risks and likely

impacts)

1. Courtauld 2 / Customer drive towards weight reduction.

2. Courtauld 2 / Customer drive towards increased recycled content.

3. Format substitution4. Energy intensive process (manufacturing &

distribution).5. Health & Safety record at glass suppliers (glass

manufacturing potentially high risk operation due to molten glass, glass fragments, high temperatures, risk of fire etc)

6. Carbon emissions tax increase - impact on supplier base.

7. Carbon footprint reduction - impacts sourcing options

BUSINESS REQUIREMENTS & NEEDS(What do your key stakeholders want?)

1. Quality container glass / fit for purpose (operations)2. Low cost container glass (commercial / shareholders)3. Innovation / exclusivity (marketing / customers)4. Flexibility / JIT / supplier stock holding (operations /

sales) 5. Reduction in supply chain risk / use suppliers with safe

working practices, who present low risk to Premier (e.g. reputational damage)

6. Suppliers are Sedex registered7. Light weighting (commercial / CSR / customers)8. Alternative formats (commercial / sales / CSR /

customers)

KEY OPPORTUNITIES & STRATEGIC OPTIONS

1. Lightweighting2. Rationalisation3. Format Substitution 4. Backhauling5. Local Sourcing6. Increased Level of Recycled Content7. Review glass suppliers health & safety performance

,key metrics and share best practice8. Increased Consumer Awareness of environmental

benefits(i.e. Infinitely recyclable format)

KEY SUSTAINABILITY ACTION PLAN

1. Progress Light-weighting Opportunities2. Second phase Rationalisation process3. Brand opportunities to move to coloured glass4. Continue to review format substitution i.e. Sun-Pat PET”5. Target 100% glass backhauling by end of 20126. Work with brands & commercial teams on product labelling

and declarations – agree logos‟s & on pack claims7. Review health & safety record of glass suppliers and share

best practice where appropriate8. Ensure all category suppliers are Sedex registered

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.

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.

Thank you

Ian Bowles

Group Head of CSR

m: 07971 322163

e: [email protected]

Final Remarks

and Questions?


Lunch

Managing Health and Safety

The Proactive Stance

Ashleigh Birkett, Eversheds LLP

20 September 2011

Aims and objectives

• Reminder of key legislative provisions

• What is “reasonable practicability”?

• Core elements of safety management system

• Pitfalls v proactive steps

• Culture

Key Health & Safety offences

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

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…

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…

Successful Health and Safety Management

The Core Elements

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.”

HSG 65

• Current guidance

• Consultation on proposed changes to HSG 65

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?

Pitfalls

What will prevent the system from working as it

should?

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

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

What are the consequences of getting it wrong?

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

Proactive Steps

Improving Culture and Commitment

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

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?

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?

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

• Work at Height

• Respiratory risks

• Asbestos risks

• Managing Contractors

Health and Safety Hot Topics

Final Remarks

and Questions?

Food & Drink Annual Seminar

Changing your Operational Space

Naeema Choudry & Ben Wharin, Eversheds LLP

20 September 2011


• People

– Managing Redundancies

– Redundancy selection criteria

– Agency Workers

– Implementing pay cuts

• Property

– Sale

– Getting out of leases

– Residual liabilities


• Managing Redundancies

– Selection

– Consultation

– Alternative employment

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?

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

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

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?

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

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

Alternatives to Redundancy

• Reducing employee headcount

• Work stoppages

• Pay Reductions

• Secondments

• Early Retirement

Sale Options

• Sale

• Sale and Leaseback

Owner Buyer of Freehold (Landlord)

Lease back to original owner (Tenant)

Getting out of Leases

Breaks

s.25/

s.26/

s.27

Alienation

Landlord

Breaches

Break Options

Drafting Service Conditionality Loose Ends

• Correct Parties

• Searches

• Calculation of Dates

• Interpretation

• Method

• Place

• Timing

• By when do the conditions need to be complied with?

• Use of correspondence to put landlord in a more difficult position

• Insurance

• Vacant Possession

• Return of Lease

• Return of Keys

• Dilapidations

• Confirmation

Alienation

How to make the best application

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?

YesNo

Tenant may be able to terminate the Lease

Residual Liabilities – Dilapidations

Injunctions Damages Forfeiture Re-Entry to Undertake Works

• Rainbow v Tolkenhold

• Leasehold Property (Repairs) Act 1938?

• Can the landlord show that there is a diminution in value to its interest? (Section 18 LTA 1927)

• Leasehold Property (Repairs) Act 1938?

• S.146 LPA 1925

• Waiver

• Right to relief

• Is notice validly served?

• Can some of the work be excluded?

• Can entry be refused?

• Can the landlord be deterred based upon the practical difficulties?

Final Remarks

and Questions?


Break

Embracing social media

Andrew Terry, Eversheds LLP20 September 2011

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

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

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

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

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”

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

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

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)

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”

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

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

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

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

Final Remarks

and Questions?