22 December 2017

What is the relevance of food law to farmers and landowners, currently engaged in watching the development of a new UK Agriculture Policy (UKAP) – arguably the first new such policy since the late 1940’s – and wondering whether the anticipated reduction in support payments will allow them to continue with their existing farming businesses?

Farming or food business?

The answer to that question is in the likely consequence of that new UKAP, which we can predict as the necessary transformation of many farming businesses.

Many farmers will be able to harvest the promised payments for environmental improvements which are expected to dominate the new support system, replacing area payments. Those farmers should see welcomed new commercial benefits from focusing on environmentally friendly outputs. For example, the improved management of soil and water should lead to a more sustainable and long lived agricultural sector, although the pure financial benefits will not be immediate.

At the same time, a significant number of farmers will be encouraged by government policy - driven by economic necessity - to adapt their businesses in pursuit of additional profits. Diversification away from food production is one way, but an increased focus on the processing and marketing of high quality food (as well as the production of the raw materials themselves) is emerging as an important theme in Michael Gove’s vision of a post-Brexit agricultural sector. If that vision becomes a reality, farming businesses will become food businesses; in that transition, their owners will need to develop a much broader vision of the risks and threats likely to affect them, as well as of the opportunities available. For those businesses, the law relating to food is a key aspect of that broader vision.

Rules and regulations

By its nature, food law has been developed primarily for the protection of the consumer. When looked at from the point of view of the primary producer, this means that it appears as a series of barriers and obligations which could stifle a new business.

For instance, the proposals made in the FSA’s July paper “Regulating our Future” (summarised in our article “How the Food Standards Agency proposes to change its approach to food regulation in the UK”) indicate a change in regulatory approach, combining enhanced registration and a new licensing system with a shift to private assurance schemes and a risk-based approach to enforcement. It will be critically important to any food business that it is able to satisfy the necessary requirements when they are introduced. Whilst Brexit may mean that different rules apply to those in the EU, the retention and administration of high standards will remain a central plank of any government food policy.

It might be said that farmers are unlikely to be the subject of food fraud, to take another angle on food law. However, anyone who buys food, whether for their own consumption or for use in adding value to existing raw materials, is vulnerable to food fraud. The recommendations made in our article “Food fraud: how will Brexit affect fraud in the food supply chain?” concerning supplier audits, may be a significant part of a food business’s processes in future.

Brand and collaboration

In contrast to these seemingly bureaucratic innovations, enterprising farmers may prefer to spend time concentrating on more ‘positive’ measures to improve profitability.

Most people are now very aware of the importance of ‘brand’ in breaking into a new market and then sustaining a position in it, particularly where that market is overseas. Creating a clear identity for new products and then protecting that identity by using legal mechanisms, such as trademarks, are likely to be obvious ways of preparing for new ventures.

At the same time, numerous voices are calling for more collaboration between farmers. The key here may well be in deciding at what level to collaborate. Farming joint ventures, such as share farming agreements, may help introduce new entrants into farming and, in certain cases, may free up participants to pursue other sources of income. But farmers also need to look further up the supply chain, at the way their produce is being marketed, if significant advances are to be made in increasing profitability. Co-operatives, to improve bargaining power by providing security of supply to large retailers, could be well worth investigating. Producer organisations, funded under existing EU food legislation for fruit and vegetable growers, might form a model for other agricultural produce, particularly where provenance rather than individual brand is a potential point of differentiation.

Food law as opportunity

The regulation forming an inevitable part of food safety law should be viewed, not simply as a threat, but also as an opportunity to encourage and inspire trust in the new value added produce. Voluntarily exceeding the standard set by food law could be a mark of outstanding quality and a way in which to distinguish the relevant produce from the competition. The development of blockchain technology to assist in establishing traceability is not a regulatory requirement at present but it is a commercial innovation which food businesses may decide to use to prove the integrity of their produce.

Of course, those farmers and landowners who are trying to improve their businesses will have many other things on their minds over the next year or two, even if they are able to ignore the numerous voices discussing the politics of the Brexit negotiations. However, the restrictions and requirements of food law are not only issues which owners and their staff need to be fully familiar with and which should be embedded in their businesses through suitable procedures, but can also become an important part of the outward face of those farming businesses turned increasingly towards the consumer.

Oxford Farming Conference 2018

Burges Salmon is the sponsor of the Science Lecture at the Oxford Farming Conference 2018. The inaugural Science Lecture will be delivered on Thursday 4 January by Professor Chris Elliott. Professor Elliott will be speaking about the controversial issue of sustaining global food supply to the rapidly growing world population and challenge the audience with ideas about the future of global food security and the role we have to play in it.

Key contact

Helen Scott-Lawler

Helen Scott-Lawler Partner

  • Head of Food and Drink
  • Commercial
  • Intellectual Property and Media

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