1 BREXIT: IMPLICATIONS FOR THE FMCG SECTOR Part 1: Product liability, IP, employment, M&A, and commercial disputes Brexit is expected to have a significant impact on the FMCG sector in the UK, and on FMCG firms in Europe which have links to the UK. The supply chains of major food and drinks manufacturers, consumer goods companies and supermarkets interweave across the EU and beyond and, within the agricultural sector, it has been estimated that as many as 38 per cent. of the UK's farm workers are non-UK EU citizens. Although the exact changes to the UK's legal and regulatory landscape will only become clear once negotiations between the UK and the EU are much more advanced, we highlight here the ways we expect Brexit to shape the legal landscape for consumer goods. This article is the first of a two part series on the implications of Brexit for the FMCG sector, and addresses the following areas: product liability; intellectual property; employment; mergers and acquisitions; and commercial disputes. The second article in the series will address trade and customs, taxes, transportation, environmental law, and agricultural and fishery issues. Product liability At present, the principal UK laws on product liability and safety are based on EU Directives which do not have direct effect in Member States (hence the need for domestic legislation to bring them into force). For example: The (UK) General Product Safety Regulations 2005 brought into force the EU General Product Safety Directive 2005. The Regulations make it a criminal offence to supply an 'unsafe' product and empower the authorities to force a producer to recall unsafe products. The (UK) Consumer Protection Act 1987 brought into force the EU Product Liability Directive 1985. This Act which makes producers strictly liable for personal injuries and property damage suffered by consumers due to defective products. Because the Consumer Protection Act 1987 is UK primary legislation, it should be unaffected by the UK leaving the EU. The position may be slightly different for the General Product Safety Regulations, which are 'secondary legislation', having been enacted by the Government using its powers under the European Communities Act 1972. It is not yet clear whether that Act will be repealed as part of the Brexit legal settlement; if it were repealed all Regulations made under it may also cease to have effect, unless specifically saved. BREXIT: CHARTING A NEW COURSE IMPLICATIONS FOR THE FMCG SECTOR HERBERTSMITHFREEHILLS 2 However, this is likely to become academic in any event since the EU is currently introducing new Regulations on product safety which will have direct effect in Member States and which are likely to come into force before the UK formally leaves the EU. One of these, the new EU Consumer Product Safety Regulation, will supersede the UK General Product Safety Regulations 2005 when it comes into force. This creates the prospect of (i) the current UK General Product Safety Regulations being repealed when they are superseded by a directly effective EU Regulation and, (ii) the UK then having to enact new Regulations to fill the gap left by the directly effective EU Regulation when the UK leaves the EU. One possible outcome is that the UK may simply enact into domestic law the new EU Regulation (which will by then most likely have been in force for some time). This would provide certainty and stability for companies and consumers and avoid the additional bureaucracy associated with a mismatching regulatory landscape for producers of goods sold within and outwith the EU. There will be issues as to how the Regulation should be interpreted as part of UK domestic law (purposively or literally, like a purely UK law) and as to the assignment of the roles of the EU Commission or other EU bodies. What to do now: Understand the regulations that your company complies with across its supply chain – whether these derive from UK law, EU law or otherwise. Understand the areas where your portfolio products comply with minimum standards, and where you voluntarily exceed such standards. Continue to monitor industry press and consult your legal advisors – the regulatory landscape here is complex. Note consultations that the Government undertakes on these areas and engage. Intellectual property The regulation and protection of intellectual property is a key concern for FMCG businesses. Protecting brand identity and product innovation, including through trade marks, patents, and trade secrets – will continue to be of critical importance. We see the following as being critical issues. Existing IP law will remain largely unchanged: We expect that, whatever future relationship the UK has with the EU, it is likely that the UK will provide for existing law to remain in place (save where there is a specific legislative requirement to change). That means IP law will continue to contain the concepts implemented from EU Directives, whether harmonising the law of Member States (e.g. as has been done with registered designs) or where novel rights have been introduced (such as protection of databases through database rights). European Patents (EP), the Unitary Patent (UP) and the Unitary Patent Court (UPC): UK designated EPs will continue to apply in the UK and to be applied for at the European Patent Office. However, in the absence of any amendment to the existing arrangements, the UK will no longer be able to participate in the new unitary patent which would provide a single patent right across all participating EU Member States and is unlikely to be able to continue to use the Unified Patent Court system through which UPs will be enforced but which will also be a forum for the litigation of existing and future EPs. It is worth noting that Spain will also be outside the new system. Indeed, the establishment of the UP and UPC system will be delayed (since the UK's ratification is a pre-requisite to its establishment as long as it remains an EU Member State) and may now even be in doubt, with the loss of the UK jurisdiction - making the regime significantly less attractive. At the very least, the fee structure may need to be reconsidered. We can expect there to be concerted efforts to find a solution to these problems, given the perceived importance of the UPC to protecting innovation and R&D across Europe for business. Assuming that the UPC does go live, UK businesses with UPs and EPs will still be able to use the UPC for enforcement in other EU participating countries. However, given these concerns and concerns at how the UPC will operate in the early years, some patent proprietors will choose to opt-out their European patents from the UPC system. As a result, business is still likely to pursue litigation in countries across Europe (including the UK) outside of the UPC system. Trade marks: In order to maintain the status quo in relation to EU trade marks (EUTMs), it is expected that provision will be made to provide an equivalent right in the UK with the same specification, priority date and term as the EU level right previously. Trade mark proprietors should consider in the meantime supplementing their protection, by applying for UK national trade marks for their key brands. BREXIT: CHARTING A NEW COURSE IMPLICATIONS FOR THE FMCG SECTOR HERBERTSMITHFREEHILLS 3 Designs: Design legislation was harmonised at EU and national level when EU design rights (registered and unregistered) were introduced, so the loss of the EU level rights will not have much impact on the criteria for (or extent of protection of) new designs in the UK, especially since the UK already had its own unregistered design right (which persists and which has a longer term than the EU equivalent). However, where proprietors have EU level protection but not UK national protection for registered designs, some transitional arrangements will be required from Parliament to ensure that these rights are not lost in relation to the UK. The international registration of designs via the Hague Agreement, to which the EU is a signatory but not currently the UK, will be possible once the UK has acceded. This was already planned pre-referendum, the UK Government's response to a consultation in January 2016 being that the UK would join the Hague Agreement before the end of 2016. Geographical Indications: Where rights have been created via EU Regulations such as Geographical Indications (GIs), these will either need to be negotiated to continue until expiry (with no new applications) via a transitional period or will need fresh legislation to provide the equivalent right in the UK. A reciprocal protection for goods being sold in the EU by third parties misappropriating the GI will need to be negotiated to provide sufficient protection for UK products currently protected across the EU. Data privacy: The General Data Protection Regulation (GDPR) will come into force on 25 May 2018, just at a time when the UK may cease to be a part of the EU. However, the ICO's view is that the GDPR will remain vital for UK businesses operating across the EU and it is possible that many of the changes contemplated may well be enacted at a national level, irrespective of the UK's future relationship with the EU. Trade Secrets: The Trade Secrets Directive adopted recently is due to be implemented into national law across EU Member States by 5 July 2018. Although the proposed changes required are minimal for the UK, the UK may still decide to implement the Directive before 2018, to ensure a strong, harmonised playing field for protecting innovation and investment across Europe. Whether or not this implementation occurs, businesses with operations across Europe will wish to establish systems of protection and practice amongst their employees to ensure certainty and consistency of approach in the way they are able to respond to the challenges of safeguarding their critical trade secrets, meaning that the new Directive will still be essential reading. Labelling: Products will still need to comply with CE-marking and other specific regulations, where their intended market is within the EU. We expect UK regulations to continue to mirror EU-counterparts in order to ensure easy access to other EU markets. Territory: Licences and other IP agreements using territory references such as EU or EEA will need to be reviewed to ensure that the UK (if it becomes a non-EU and non-EEA state) continues to be covered, and that there are no other territorial implications. Future contracts being entered into will need thought as to their intended coverage. Definitions of "intellectual property" in documents and contracts: These definitions may need to be revisited to check that they cover all "new" provisions put in place to cover rights previously held on an EU-wide basis. Exhaustion of rights: The rule of "exhaustion of rights", which provides that goods placed on the market in one part of the EU cannot be prevented from circulating freely within the EU and hence IP rights cannot be used to prevent the movement of goods across EU internal borders, would fall away in relation to the new UK/EU border and the use of seizure procedures via Customs and Excise may thus come to the forefront, unless such free movement of goods provisions are retained in any future relationship between the UK and the rest of the EU. This could have a significant impact upon parallel imports from the EU into the UK, particularly in the FMCG sector where such imports are widespread. What to do now: Identify and review licences and other IP agreements which are intended to cover the EU, particularly for references to the EU, and confirm that these will continue to be appropriate and cover the UK post-Brexit. Register national UK rights in parallel to your current EU-wide rights (e.g. UK trade marks, UK registered designs and UK plant breeders' rights). Continue to file national or European patents designating the UK. BREXIT: CHARTING A NEW COURSE IMPLICATIONS FOR THE FMCG SECTOR HERBERTSMITHFREEHILLS 4 Continue to review your EP portfolio to decide whether to opt-out current EPs from the UPC system; things may move quickly if and when the UPC does go ahead. Continue to develop trade secrets policies and procedures in compliance with the Trade Secrets Directive to ensure smooth operations across Europe. Note any consultations the Government undertakes on intellectual property rights and the replacement of EUlevel rights (such as database rights and SPCs) and engage in these consultations. Employment and migration Until the UK leaves the EU, all EU employment law will continue to apply as before. After Brexit, employment rights which are not based on EU law – e.g., unfair dismissal, statutory redundancy pay, the national minimum wage, and most trade union legislation - will be unaffected. However, there are some key employment law rights which are derived from EU legislation, and FMCG businesses with employees in the UK will therefore face an inevitable period of uncertainty as to whether these rights will be retained, either because a commitment to retain them is included in the Brexit deal negotiated, or (if the UK negotiates complete freedom to set its own employment and immigration laws) because Parliament chooses to retain them in the same or an amended form. Rights derived from EU law: The majority of employment rights currently derived from EU Directives have been implemented as primary legislation (e.g., protection from discrimination) or secondary legislation (e.g., rights relating to working time, agency workers, TUPE, European Works Councils, and collective redundancy consultation). Where these rights are embodied in primary legislation - such as the Equality Act 2010 - they will remain in force unless and until the legislation is repealed. In contrast, rights under secondary legislation made under the European Communities Act 1972 will probably fall away automatically on the repeal of that Act, subject to Parliament choosing to replicate them or an amended version of them. A significant law-making effort will be required to "plug the gap". Even if the UK does negotiate a deal involving freedom to set employment laws, there is unlikely to be a wholesale sweeping away of EU-derived rights, given the opposition this would face politically. Indeed, a crossparty group of MPs has recently challenged the Prime Minister to provide commitments that employment rights provided for under EU law will be protected. More likely is a gradual tinkering around the edges, perhaps to row back on unwelcome rulings of the European Court of Justice in a number of areas. The most likely targets for substantial change, if that is permitted by the UK's deal, include the Working Time and Agency Workers Regulations. These have been heavily criticised as being overly burdensome for businesses and could be abolished or amended, creating opportunities and efficiencies for UK FMCG businesses. FMCG employers will also face a period of uncertainty as to whether UK employment tribunals and courts will continue to apply decisions based on rulings of the CJEU; much-litigated issues such as holiday pay rights could be re-opened, making the legal position unpredictable until suitable cases are decided by the UK courts. Freedom of movement: One of the most important areas for negotiation between the UK and EU, and one of the most politically sensitive topics, will be the extent to which freedom of movement of people between the UK and the post-Brexit EU is maintained. Any restrictions here would have significant implications across FMCG companies and their supply chains, including the agricultural sector, where many businesses are heavily reliant on seasonal workers or non-UK workers more generally. A number of the possible arrangements, including membership of the European Economic Area or a Free Trade Agreement similar to the Swiss model, would require free movement to be continued and therefore cause minimal disruption. However, this is unlikely to be acceptable politically, and the UK is likely to seek to negotiate a new type of arrangement involving a more restrictive immigration and visa system. If this were negotiated, it would require a period of significant re-adjustment, and potentially restructuring, to address new staffing models. As yet, it is still unclear what the position will be for current migrants. The extent to which UK nationals can live and work in the EEA will also be affected. BREXIT: CHARTING A NEW COURSE IMPLICATIONS FOR THE FMCG SECTOR HERBERTSMITHFREEHILLS 5 What to do now: Consider the EU / visa status of key personnel and the implications of any restrictions on their right to work in the UK or within the EU on your critical functions. Multinational FMCG companies which have set up European Works Councils under UK legislation may need to develop contingency plans. Depending on the terms of the Brexit deal, EWCs may no longer be mandatory in the UK, or an EWC agreement not governed by the laws of an EU jurisdiction may no longer be compliant with the EWC Directive. Continue to monitor industry and political press. Consult your legal advisors regarding changes to employment legislation, proposals on migration and any consultations that the Government undertakes in these areas. M&A activity In advance of the Brexit vote, it had been widely predicted that Brexit would result in a fall in consumer confidence, a drop in domestic revenues for consumer businesses, and a devaluation of Sterling and that a consequence of this could be a fall in M&A activity in the FMCG sector. In fact, consumer confidence has remained relatively stable over the summer of 2016 (if fairly low by historical standards), and fall in the value of Sterling over that period has resulted in a number of opportunistic M&A deals. The weaker Sterling has made UK assets appear attractively priced and, over the longer term, a weaker Sterling would cheapen UK exports, improving prospects for UK exporter businesses. The longer-term impact will be of course depend on the trade agreements negotiated between the UK and the EU, and whether UK businesses will continue to be able to move goods without tariffs and quotas and benefit from simplified customs procedures when trading with the EU. And bilateral trade deals with the UK's more distant trading partners (particularly in East Asia) could increase trade flows with these countries, thereby driving consumer demand in the UK. We will explore this area in more detail in Part 2 of this note. In the short-term however, whilst the uncertainty of Brexit may act as a deterrent to certain M&A activity, we expect the following to also be relevant: foreign investment into food businesses will remain buoyant as food businesses tend to be less affected by changes in demand; it is expected that UK and overseas banks will remain keen to lend to fund acquisitions and fixed capital expenditure projects; the drop in the value of sterling will have different implications for those UK FMCG companies that have significant earnings in Sterling compared to those who have significant earnings in other currencies but report in Sterling – reduced earnings for the former group may make them vulnerable to opportunistic inbound M&A, whereas increased earnings for the latter may open up previously unaffordable opportunities; and any longer-term depreciation of Sterling may create well-priced domestic opportunities for UK investors whose own businesses are less exposed to consumer confidence. What to do now: In considering any current M&A activity relating to a UK or EU target, keep in mind the issues highlighted in this note, to the extent that they relate to the target. For example: what is the potential impact on the target's trading relationship with the EU / with the UK? how will the target's supply chain be affected by Brexit – how can certainty of supply and certainty of cost be retained? how robust are the target's compliance policies and procedures, and how well prepared does the target appear to be for Brexit? Will the target's compliance costs rise as a result of Brexit? what proportion of the target's UK workforce consists of EU citizens, and vice versa? What would the impact on the target be if some or all of the target's EU employees were no longer permitted to work in the UK, or if the target's UK employees were no longer permitted to work in the EU? BREXIT: CHARTING A NEW COURSE IMPLICATIONS FOR THE FMCG SECTOR HERBERTSMITHFREEHILLS 6 Brexit and associated economic factors (including any longer-term depreciation of Sterling) will create opportunistic plays for investors outside the EU and the UK. Who are the likely competitors for this asset, and how will you differentiate yourself from them (for example, in discussions with target management)? Commercial disputes Brexit will affect the landscape for commercial disputes in the UK and Europe, both in the short and the longer term. The below contains a list of immediate action points for the months to come. Counterparties may look for grounds to terminate or renegotiate their contracts: contracts which predate Brexit, or indeed which predate the announcement of the Brexit referendum, may not cater expressly for commercial adjustments which result from the UK's ultimate departure from the EU. Changes in international trade law as applicable to trade between the UK and the EU – for example, the imposition of any tariffs – may make contracts for the supply or distribution of FMCG significantly more expensive to perform. In this context, parties may look for grounds to terminate or renegotiate newly onerous contracts – for example, parties may focus closely and seek advice on MAC clauses, provisions for change of law, and periodic repricing provisions as means of applying pressure to obtain a more favourable deal. The incidence of "economic breach" may rise: in the absence of any express or implied terms which enable a party to apply termination or renegotiation pressure, parties may consider that it is cheaper to cease to perform some contracts – and face an action for damages – than continue to perform on very unattractive terms. This may be particularly true in the case of FMCG supply contracts with limited or no minimum purchase terms. English law will remain the leading governing law for commercial contracts globally: English law will largely be unaffected by whether the UK remains part of the EU or not. It will continue to be selected by businesses for certainty as the choice of law for very many commercial arrangements. The English Courts will remain a centre of excellence for determining disputes governed by English law and will remain a popular forum for high value and complex disputes. This is given the quality of the judges and robustness of the process, as well as the innovations the courts have been developing, such as: (i) trial within 12 months as part of the shorter trial scheme; (ii) costs are kept in check through budgeting; and (iii) recovery of costs from the losing party is increasingly assessed summarily after trial with a lump sum award. The UK will remain competitive on all fronts whether inside or outside of the UK. UK court judgments will remain readily enforceable within the EU or globally. Pan-European enforcement strategies remain important. Current or future pan-European litigation strategy will still involve multiple courts and supra-national management of disputes. It will still be critical to have advisers who are expert in handling multiple cross-border disputes and managing local lawyers in every jurisdiction within Europe or beyond. What to do now: Plan for an analysis your existing contractual framework to stress test your key contracts for the potential implications of Brexit – for example, any potential for increased costs which you will be unable to resist. Analyse which contracts you may wish to terminate depending on the effect of Brexit upon your business, and assess how you would replace those contracts or otherwise mitigate the effect of their termination. Rigorously monitor counterparty performance to assess whether any of your business partners are contemplating changes to their own contractual frameworks, in a manner which could affect your business. Competition law Although the Competition Act 1978 adopts the same approach as EU Competition Law, the UK has maintained a different regime for assessing mergers and carrying out market investigations under the Enterprise Act 2002. Both these Acts will remain in force in the UK, and EU competition law and the laws of EU Member States will continue to apply in the continuing EU. What will probably be lost is the jurisdictional allocation of cases and merger control between the UK and the EU, and EU law will cease to be a part of UK law. BREXIT: CHARTING A NEW COURSE IMPLICATIONS FOR THE FMCG SECTOR HERBERTSMITHFREEHILLS 7 Paradoxically, this will result in double jeopardy for businesses: an infringement of competition law affecting the EU and the UK can be investigated by both, and lead to fines by both, whereas previously the EU would probably have taken sole jurisdiction. The same applies to large international mergers. While significant emphasis was placed on the potential for business-friendly deregulation if there were a Brexit vote, it currently seems unlikely that competition law rules within the UK will be relaxed, with the possible exception of certain state aid rules. A more realistic outcome is that although UK competition laws will continue to reflect EU competition laws, there may be some divergence in the medium term, which may increase the complexity of compliance for businesses operating cross-border in Europe. By way of example of early divergence, the UK Government has announced its intention to extend the public interest test on mergers under the Enterprise Act to include a national security review of investors in the UK's critical infrastructure. Digital single market One area where Brexit may have an impact in the next few years is in relation to the European Commission's Digital Single Market initiative, which aims to open up competition across the EU in digital markets through a series of initiatives that seek to remove practical obstacles to e-commerce. These initiatives include improving consumer protection rules to address the reluctance of Europeans to shop cross-border, addressing issues with high parcel delivery costs, simplifying VAT rules for businesses [Link to HSF bulletin on tax: https://www.herbertsmithfreehills.com/-/media/Files/PDFs/2016/Article32TaxeffectofBREXITpdf.pdf] and reviewing rules on IP and satellite/cable transmission. From a competition perspective, the Commission is seeking to enhance options available to prevent geoblocking – the practice whereby retailers divert customers to a particular website on the basis of the nationality or residence of that customer, or block customers from accessing certain websites for the same reasons, allowing retailers to charge consumers different prices in different countries. While clauses in distribution agreements which require geoblocking may be anticompetitive under EU law, a Commission survey found that the majority of geoblocking practices in relation to consumer goods (excluding digital content) arise from unilateral practices and therefore probably fall outside the scope of competition law (except where the supplier is dominant). The Commission therefore proposed a regulation prohibiting the practice of geoblocking. If, post-Brexit, the UK were to retain access to the Single Market in an EEA-type arrangement, the geoblocking regulation would likely still apply. However, in a scenario where the UK exits the Single Market, the Digital Single Market initiatives would not apply to UK-based e-commerce businesses and the UK would find it difficult to unilaterally adopt measures with equivalent cross-border effect. The commercial impact of this will depend on each business' perspective. What to do now: FMCG firms should analyse how the changes outlined above may affect their businesses, in order then to assess any risks and opportunities and identify the appropriate course of action. For example: M&A activity may be affected by double jeopardy, but not until the UK actually leaves the EU; certain brand-owners and online retailers may welcome the ability to prevent customers in the UK from purchasing from other EU based online retailers, and to prevent EU customers from purchasing from UK retailers; however, given that UK business is a significant online exporter to other European countries, certain retailers may also see a significant reduction in online export sales to EU consumers if they find that brand-owners start to impose restrictions on online retailers' ability to sell outside the UK, with business being diverted to websites with an EU presence. This difficulty could potentially be compounded if products shipped from the UK to the EU were subject to additional duties and tariffs; any businesses which have a presence in the remainder of the EU will continue to have to comply with all applicable EU laws within the EU, including regulations arising from the Digital Single Market initiative. If Brexit does result in additional duties and tariffs on UK products being sold into the EU, it may be more economical for such businesses to move a greater part of their supply chains into an EU jurisdiction post-Brexit; and UK-based SMEs with substantial online retail export businesses may be the most exposed to missing out on the benefits on offer as part of the Digital Single Market reforms, which were intended to increase consumer confidence in cross-border e-commerce.