On 28 June, further parts of the Building Safety Act 2022 came into force, including those relating to defective construction products, the extension of limitation periods for claims under the Defective Premises Act 1972, Liability Orders, and Architects' disciplinary matters. The government had previously suggested that many of these parts would not come into force until April 2023, but their implementation was brought forward to two months post-Royal Assent, with a government press release focusing on leaseholder protections. Critically for freeholders and long leaseholders of "higher-risk buildings" (buildings at least 18 metres in height or having seven storeys and containing at least two residential units, subject to some limited exceptions) and their managing agents, these provisions allow claims to be brought for defective work on these buildings or defective construction products installed on them, a full 16 months before the safety management requirements duties will come into effect and be subject to enforcement. If you require advice on the Building Safety Act 2022, please contact our expert team.
High Court clarifies circumstances when new evidence will require the state to reopen an investigation into a suspicious death. Deaths in the workplace can, in certain circumstances, be considered "suspicious" and the state is obligated to investigate such deaths under Article 2 of the European Convention on Human Rights (the right to life), which is enshrined in UK law via the Human Rights Act 1998. The High Court decided that the chief constable of Essex was right not to reopen an investigation into a suspicious death following a new report by a forensic pathologist, due to there being no reasonable prospect of a successful prosecution. The court laid out the relevant factors to take into account when determining whether new evidence would revive the state's obligation to investigate under Article 2 of the European Convention on Human Rights. Those factors are: In assessing whether to reopen an investigation, the authorities are entitled to take into account the prospects of a
successful prosecution Where events or circumstances cast doubt on the original investigation, an obligation for a further investigation may
arise The nature and extent of any further investigation would depend on the circumstances and might well differ from that
required immediately after a suspicious, violent death has occurred There is no prescriptive test that will apply to all cases where it is suggested that new material has come to light, but
the state must be sensitive to such fresh evidence The investigative obligation must not be imposed in a manner that results in an impossible or disproportionate burden
on the authorities Where a plausible new piece of evidence comes to light, the steps the authorities are obliged to take will vary
considerably depending on the circumstances and may be limited to, for example, verifying the credibility of the source
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The Health and Safety Executive (HSE) updates guidance on managing the health and safety of new mothers and pregnant workers. The HSE has updated its guidance. While employers were already required to consider risks to women of childbearing age in a general risk assessment, the HSE is now advising employers to carry out an individual risk assessment for all new mothers and pregnant workers, which must cover their specific needs when the worker informs them that they are pregnant, have given birth in the last six months, or are breastfeeding. The guidance provides advice on common risks (including fatigue, lone working and exposure to harmful substances), rest and breastfeeding at work, and night working. Employers should review the advice and ensure that they have individual risk assessments, where necessary, and that those risk assessments are suitable and sufficient, using the guidance.
Research reveals asbestos is still present in thousands of local authority buildings. The research by the Trades Union Congress (TUC), commissioned by the all-party parliamentary group, revealed that only one local authority has removed asbestos from all of it premises, with 2,690 premises owned by 31 council's that participated in the survey still containing asbestos, including schools and public housing. According to the HSE, Britain has one of the highest rates of mesothelioma, a form of cancer that is almost always caused by exposure to asbestos, in the world. This, combined with the findings relating to the high presence of asbestos in local authority premises, has led the TUC to call for legislation requiring the removal of asbestos from all public buildings. Under the Control of Asbestos Regulations 2012, current practice in the UK is to manage asbestos in-situ, where possible, by instructing a suitable and sufficient assessment to identify asbestos containing materials (or materials likely to contain asbestos or that are inaccessible), create a plan to manage any identified asbestos, and then implement that plan and keep it under review. If a new law was introduced requiring the removal of all asbestos, this would have significant financial implications and would create significant legal risks (for example, due to the need to vacate premises to allow removal works to take place, and due to exposure to asbestos caused by any defective removal works, as asbestos is only dangerous when disturbed). We will provide further updates should any government proposals for new legislation materialise.
Consultation opens on police requests for personal records from third parties. Under the work-related deaths protocol, the police have primacy in investigations into homicide-related offences, such as corporate manslaughter and gross negligence manslaughter. The police may also have primacy in some other instances (for example terrorism offences committed on publicly accessible corporate premises) and will only hand over matters to the HSE or other authority when and to the extent appropriate. A consultation opened on 16 June 2022 surrounding police requests for personal data (such as health and education data) during the course of a criminal investigation. Such requests can be considered disproportionate and intrusive. However, the requested data may also be relevant to an investigation. The Home Office is seeking to understand how these types of police requests are dealt with and to identify potential solutions for respondents. The consultation is open to organisations that hold personal information that could be the subject of such a request, anyone involved in the criminal justice system, and victims of crime (and victims' groups) who have been the subject of such requests during a police investigation. It closes on 11 August 2022. We will provide a further update when the government's response to the consultation is published.
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Judge's use of algorithms in a sentencing exercise is permissible. The Court of Appeal has determined that the use of an algorithm in a sentencing exercise in a case relating to the supply of crack cocaine and heroin was "wholly permissible", as it was only used as a guide. The algorithm was based on information relating to the average daily use figures of the drugs collected during a Home Office review. This was then used by the police to estimate the weight of drugs sold in a day by the defendant, which, in turn, led the prosecution to argue that the weight pushed the defendant into a higher category of the sentencing guideline than the defendant had accepted. Although the facts of this case do not relate to business crime, an appellate court allowing the use of an algorithm in a sentencing exercise in criminal proceedings still sets a precedent for cases for future use of algorithms in any cases in lower criminal courts, such as Crown Courts and Magistrates' Courts, generally. It is unclear from the case report how much of the mathematical modelling, data and assumptions that went into the algorithm were disclosed to the appellant in advance of the sentencing.
Review of corporate criminal liability is published by the Law Commission. The review sets out options for reforms to how companies, local authorities and public bodies are convicted. The government had requested the review and options for strengthening the law in a way that do not overburden businesses in 2020, following concerns that the law does not adequately hold such organisations to account, particularly large companies that commit economic crimes. The Law Commission has provided 10 options:
1. Retain the identification doctrine, which is the current general rule of criminal liability applied to corporations.
2. Allow conduct of members and senior managers to be attributed to a corporation if they engaged, consented or connived in the offence. Chief executive officers and chief financial officers could be considered part of an organisation's senior management as a rule of thumb.
3. Introduce a new offence of failure to prevent fraud by an employee or agent, in circumstances where the company has not put appropriate preventative measures in place to stop employees or agents committing a fraud offence that benefits the company.
4. Introduce a new offence of failure to prevent human rights abuses.
5. Introduce a new offence of failure to prevent ill-treatment or neglect.
6. Introduce a new offence of failure to prevent computer misuse.
7. Make publicity orders (that require an offender to publish details of a conviction) available in all corporate convictions.
8. Introduce a regime of administratively imposed monetary penalties.
9. Introduce civil actions in the High Court, based on Serious Crime Prevention Orders, with a power to impose monetary penalties.
10.Introduce a reporting requirement requiring large corporations to report on anti-fraud procedures.
If any of these options are introduced into law, they will create greater accountability for businesses. In particular, if the suggested new offences are created, businesses will likely need to assess the adequacy of their current procedures and safeguards to identify whether further action is required and, if so, build these actions into policies and procedures. In addition, public reporting requirements would create greater scrutiny of businesses' anti-fraud procedures, which could have a reputational impact. We will report further if the government proposes to make any of these options law.
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Evidence seizure and cash seizure regimes are overlapping, not exclusive. The High Court determined in Shetaya v Metropolitan Police Service [2022] EWHC 1426 (Admin) that the powers of evidence seizure under the Police and Criminal Evidence Act 1984 (PACE) and the powers of cash seizure under the Proceeds of Crime Act 2002 (POCA) could be exercised in a complementary way. In this case, this meant that although cash had already been seized using PACE powers, it was also detained under POCA and this would "run alongside the criminal investigation". The court decided that there was "nothing in the language used in either statute to indicate that the powers are not overlapping." Businesses that may become subject to corporate criminal proceedings should bear this in mind and know that any cash seized by authorities under PACE may also become subject to POCA investigation.
Scottish government identifies a 900 million shortfall for cladding remediation. The funding gap was identified using Scotland's Single Building Assessment approach, which is a building-by-building method of identifying remediation costs, which is operated by the Scottish government. Recent media reports are that the Scottish government has admitted that it will cost around 1 billion to remediate cladding in Scotland. However, Holyrood has so far received only around 100 million, although more is expected. The expectation is also that developers and/or freeholders/landlords of high-rise residential buildings will foot some of the bill, so the funding gap will be of interest to them.
Transport for London admits to Croydon tram crash failings. The Office of Rail and Road has stated that Transport for London has pleaded guilty to breaches of Section 3(1) of the Health and Safety at Work etc. Act 1974 in relation to the fatal incident in 2016 in which seven people died and 19 were seriously injured. The driver of the tram has pleaded not guilty to breaches of 7(a) of the Health and Safety at Work etc. Act 1974. The crash occurred when the tram derailed after the driver "lost awareness" as he was approaching a tight curve, and the tram was going more than four times the speed limit. The case has been referred to the Crown Court for a pre-trial hearing to list and case manage future hearings.
Corporate Homicide Bill is introduced into Scottish Parliament. On 20 June, the Corporate Homicide Bill was introduced into the Commons and went through its first reading. The Bill seeks to amend the Corporate Manslaughter and Corporate Homicide Act 2007 to make provision for the amendment of the offence of "corporate homicide" and other connected purposes. It will apply in Scotland only, as the offence of corporate homicide is in Scottish law and not English law. As currently drafted, an organisation in Scotland will be guilty of an offence if a "responsible person" acting within the scope of their employment by that organisation recklessly causes the death of any person. A "responsible person" is currently defined as a person who supervises, manages or organises any person or activities on behalf of an organisation (or any part of one) as part of their actual, ostensible or implied duties for that organisation. This represents a refinement of the definition of a person that can cause an organisation to be liable for their acts or omissions, as currently it is only senior managers who "play significant roles" in decision-making or organising a substantial part of an organisation's (or part of its) activities. The new definition of "responsible person" would bring employees further down the line of command within the scope of the act, as it could apply to a person who supervises a single person in relation to any activity during the course of their employment. The second reading will take place in November and will give MPs their first chance to debate the Bill's main principles. We will provide further updates as they become available.
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Transport company is fined after an employee was killed by a training incident. Reports indicate that the HSE position was that the Leeds-based company failed to ensure that adequate instructions about how training should be delivered were given to its in-house trainer and that monitoring of training took place. The court heard that an employee was being trained on operating a trailer mover when he was struck by the mover's tiller head and pinned against a trailer, leading to crush injuries to his chest. The company pleaded guilty to health and safety breaches and was fined 850,000. The case highlights that in-house training staff need to be trained themselves on how they train and that they should be monitored to ensure that they are not conducting training in a way that endangers workers.
Changes to the product conformity marking process are announced. The government announcement states that a range of changes will make it simpler to apply the new conformity marking, UKCA (UK Conformity Assessed). It will be a legal requirement for certain products to bear the UKCA mark in order to demonstrate conformity to product standards in Great Britain post-Brexit (in a similar way to the CE mark, which is used to indicate compliance with EU product standards). A number of measures have been brought forward, including: Conformity assessments undertaken by EU bodies before 1 January 2023 will be accepted as a basis for applying for a
UKCA marking in 2023. CE marked products manufactured and imported into the UK before 1 January 2023 can be placed on the UK market
without needing to meet UKCA requirements. Retesting or recertification of these products will not be required. Current measures relaxing labelling requirements to allow the UKCA marking and other information to be affixed to
products via a sticky label or provided in a separate document will be extended. Construction products manufactured under AVCP system 3 (assessment and verification of constancy of performance)
including sealants, tile adhesives and radiators that are tested by an EU notified body prior to 1 January 2023 will not have to retest through a UK-approved body to obtain a UCKA marking. Spare parts for repairing, replacing or maintaining products already placed on the market will continue to be accepted and the requirements will remain the same as those that were in place at the time that the original product or system they relate to were placed on the market. These changes have also been reflected in the government's guidance on placing manufactured goods on the market post-Brexit.
Consultation is opened on choices of units of measurement. The consultation seeks views on units of measurements used in consumer transactions. The UK adopted the metric system in the mid and late nineties to ensure conformity with EU law. However, imperial measurements remain widely used. Post-Brexit, the government is seeking views on how more choice could be provided to businesses and consumers in terms of units of measurement, particularly imperial measures. This will be of interest to all traders of consumer goods. The consultation closes on 26 August 2022. We will report further once the government's response is published.
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Planned toy and cosmetics regulations changes are announced. The announced changes relate to technical annexes to Regulation (EC) No 1223/2009 on Cosmetic Products (as amended by the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019) and Schedule 2 to the Toys (Safety) Regulations 2011. The effect of these changes will reduce the permitted level of, prohibit the use of, or widen the permitted use of, specific chemicals. Deoxyarbutin will be banned in cosmetic products and the use of salicylic acid (for use other than as a preservative) will be permitted at 0.5% in certain cosmetic products. The limits for aniline and formaldehyde will be reduced in toys intended to be placed in the mouth or intended for use by children under 36 months old. The permitted migration limits for aluminium will be reduced in toys, and thyl heptine carbonate, atranol and chloratranol will be banned in toys. A timeline for the changes can be found in the announcement. These changes will be of note to manufacturers of cosmetics and toys.
Food Standards Agency (FSA) and Food Standards Scotland launch an annual review of food standards. The report is the first of what will be an annual publication. Its "cautious conclusion" is that food standards in the UK have largely withstood the challenges posed by Brexit, COVID-19 and disruption caused by the Russia/Ukraine conflict. However, it also warns of future challenges and identifies two key concerns. First, the number of food safety inspections has fallen due to pressure on the resources of local authorities. Second, the risk of unsafe food entering the UK market has increased due to the delay in establishing import controls for high-risk food and feed coming from the EU to the UK. Businesses should be mindful of the report's conclusions and note that the concern highlighted regarding inspection rates may suggest that inspection and enforcement activity is likely to increase as authorities seek to address this issue.
FSA plans a new UK food safety network to tackle the 9 billion food poisoning challenge. The FSA and the Biotechnology and Biological Sciences Research Council have announced they have invested 1.6 million into a new "UK Food Safety Network". The network is intended to serve as an innovation hub for food industry, food and health policymakers and academia, and will be hosted by the Quadram Institute. It has been created in response to the estimated 2.4 million cases of foodborne illnesses per year in the UK, linked often to microbial pathogens carried into food from the environment, livestock or people. The FSA estimates costs from these illnesses at some 9 billion annually. The supply of unsafe food is, of course, also an offence and one of the network's focuses will be on "robust actions", which may indicate more proactive monitoring and enforcement in connection with microbes such as Campylobacter and Salmonella. See our recent Legal NewsBITE article for more details.
Government commits to tackling deforestation in UK supply chains. The Department for Environment, Food and Rural Affairs (DEFRA) has published a response to the consultation on implementing due diligence on forest risk commodities introduced under the Environment Act 2021, which ran from December 2021 to March 2022. The response promises to implement due diligence provisions in the Environment Act `at the earliest opportunity through secondary legislation'. Over 16,000 responses were submitted from a range of organisations and individuals (although the vast majority were identical campaign responses) giving views on: which commodities should be in the scope of the regulations, which businesses should be obligated, and enforcement. DEFRA confirmed which proposals it would take forward in respect of the forest risk commodities in scope, namely cattle (beef and leather), cocoa, coffee, maize, palm oil, rubber and soy. Businesses whose turnover passes a certain threshold (expected to be set between 50m and 200m) may only use a forest risk commodity (or derived product) in UK activities if local laws for that commodity are complied with. There will be a new requirement on those businesses to implement a due diligence system for any forest risk commodities or derived products and produce annual reports on their use.
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Environment Agency sets out roadmap for more flood and climate-resilient nation. The EA's Flood and Coastal Erosion Risk Management Strategy Roadmap to 2026 (FCERM) was published in early June 2022. It sets out practical actions to be taken to tackle the threat of flooding from rivers, the sea, and surface waters, and coastal erosion, and builds on a plan first published in 2020. Its three ambitions are: `Climate Resilient Places', `Growth and Infrastructure', and `a nation ready to respond to flooding and coastal change'. Key actions from FCERM include developing a new national assessment of flood risk from rivers, the sea and surface water to improve mapping and inform risk and investment decisions; working with coastal groups to update policies in Shoreline Management Plans in order to reflect climate change; working with national infrastructure providers (including National Highways and Network Rail) on joint investment opportunities and ensuring national infrastructure is resilient to future flooding and coastal change; and working with the EA's supply chain to ensure all food and coastal projects adopt low carbon technologies that contribute to net zero targets.
DEFRA and the EA publish guidance to organisations preparing for extended producer responsibility (EPR). Under EPR, packaging producers will be made responsible for the full costs of managing the packaging that they place on the market. The guidance sets out who needs to take action in respect of the new EPR, what needs to be done depending on size of organisation and status as a parent/group/subsidiary, and details on how to prepare to capture packaging data depending on the type of packaging concerned. Whilst the company size/tonnage of packaging for full EPR obligations has not changed from the current packaging waste regime, organisations with an annual turnover of 1 million or more and responsible for over 25 tonnes of packaging per year will be required, for the first time, to report packaging data in 2024 (but this data will be for 2023). Therefore, organisations affected by the new EPR for packaging, must make sure that they are able to collect the correct packaging data from 1 January 2023. Guidance on producer responsibilities in respect of packaging waste (first published in 2014) and the packaging section of the producer responsibility regulations have been updated accordingly.
New Consultation launched on the principles of marine net gain. A new consultation has been launched seeking views on the principles of marine net gain, in order to inform the policy and approaches to marine net gain implementation. DEFRA wants to hear from marine industries, recreational marine users, non-governmental organisations (NGOs) and conservationists, academics, and coastal communities. The consultation will apply only to development in the English inshore and offshore region and closes on 30 August 2022.
Environment Agency publishes regulatory statement. At the end of May 2022, the EA published its regulatory statement setting out its strategic goals, details of how it continues to improve its regulation, and an overview of its broad regulatory activities. Among its `ambitious' programme of improvements, the EA committed to making full use of additional resources and its legal powers (eg: tackling waste crime), investing in digital systems and technology in order to better engage with businesses and the public, working with government to shape future environmental regulation outside the EU, ensuring its regulation encourages and supports sustainable business and technologies, increasing its data intelligence, and improving how it measures and evaluates its regulatory performance.
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UK government comments on EU proposals for new Regulations on F-gases and ozone depleting substances. On 25 May 2022, the government published two explanatory memoranda on two European Commission (Commission) proposed reforms: (1) on the proposal for a new Regulation to reduce and control the use of fluorinated greenhouse gases (F-gases), which will repeal the F-gas Regulation (517/2014) and amend the Whistleblowing Directive ((EU) 2019/1937); and (2) on the proposal for a new Regulation on controlling ozone depleting substances (ODS), which will repeal the ODS Regulation (1005/2009). The existing EU legislation (that the Commission proposals would amend) has applied in Northern Ireland (NI) since the end of the transition period on 1 January 2021, and these proposals are therefore important to understand. Since the Commission's F-gas proposals may affect the movement of goods between Great Britain (GB) and NI, the UK may opt to introduce measures in GB that are similar to the EU's proposals. The EU ODS proposals are unlikely to affect trade, but will increase efficiency and reduce administration. The UK government will be undertaking its own reviews of GB F-gas and ODS regulation, and may consider alignment between GB and NI. A consultation on the matter is expected later in 2022.
Three environmental and legal organisations challenge the UK government's Net Zero Strategy in the High Court. ClientEarth, Friends of the Earth and the Good Law Project, who launched separate legal challenges in January 2022, argued that the October 2021 Net Zero Strategy (NZS) breaches the government's obligations under the Climate Change Act 2008, alleging that it is not in line with legally binding carbon budgets. As set out by Friends of the Earth (FoE), the groups argue the NZS does not give enough information on how its policies will contribute to emissions reductions. It "does not quantify what effect its policies will have on reducing emissions, or the timescales in which these will happen, therefore it is not possible to know what impact it will have on meeting climate targets. This means that neither Parliament nor the public can hold the government fully to account." Government previously conceded to FoE in May 2022 that it acted illegally in not considering the impact of the Heat and Buildings Strategy on people with protected characteristics (age, disability, and race). Since January 2022, BEIS has acknowledged that some of the strategy's policies were unquantified and others relied on an unpublished quantitative analysis (but will not share data). We will monitor the case and report on the judgment when published.
Climate Change Committee (CCC) reports that current government programmes will not deliver Net Zero. On 29 June 2022, the independent CCC published a landmark 600-page Progress Report to Parliament (and accompanying Monitoring Framework) warning that there are major risks to delivery of the NZS. The report presents some key messages: First, while government has a solid NZS in place, important policy gaps remain on land use and energy efficiency of buildings. Secondly, in order for plans to be credible and build on COP26, more emphasis should be placed on delivering goals in all areas (i.e. tangible progress should trump simple ambition). Next, successful delivery of changes on the ground requires active management of delivery risks government should act to reduce demand for fossil fuels to reduce emissions and limit energy bills. Fourthly, action to address the rising cost of living should be aligned with Net Zero. Government should also be proactive in filling the skills gap and planning consent for infrastructure.
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New Greenhouse Gas Removals Regulator Considered by Government. The government is reportedly in the early stages of considering a regulator to oversee greenhouse gas removals. ENDS reported (subscription required) that plans include establishing a regulator to take on a number of roles, including monitoring woodland offsetting schemes and bioenergy with carbon capture and storage technology. This follows a taskforce's recommendation that an independent body carry out the monitoring, reporting and verification of greenhouse gas removals. A spokesperson for DEFRA highlighted: "the vital role greenhouse gas removals has to play in ending our contribution to climate change and we are exploring options for their regulatory oversight". Voluntary Carbon Markets Integrity (VCMI) Initiative consults on code of practice for claims about carbon offsets. The VCMI was started in 2021 to ensure voluntary carbon markets made a positive contribution to goals set under the Paris Agreement. It recently launched a consultation on a provisional code of practice on claims that companies make about their use of carbon credits or offsets. The group aims to develop guidance on how carbon credits can be voluntarily used and claimed by businesses as part of credible net zero decarbonisation strategies. At present, the lack of clarity on what carbon reduction commitments and claims mean, a lack of transparency about corporate climate performance, and the inconsistent use of terminology, all risk undermining confidence in the voluntary carbon market and in corporate climate commitments. The provisional code of practice would provide guidance to stakeholders on when they can credibly use carbon credits as part of their voluntary climate commitments and targets. VCMI proposes steps for companies to make credible claims about their voluntary use of carbon credits, which include meeting prerequisites (like setting science-aligned net zero targets), purchasing high-quality credits and transparent reporting on credit use. There would be an accreditation scheme for claims (gold, silver or bronze) according to how on track companies are meeting their scope 1, 2 and 3 emissions targets, and the quantity of residual emissions that are offset by carbon credits. The final claims code of practice would be published in late 2022 to early 2023 with a review intended for 2025.
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Greenwashing case updates: Tesco and Sainsburys' plant-based diet adverts. The Advertising Standards Authority (ASA) clarified the requirements for compliant environmental claims in advertising in two rulings to these major supermarkets whose adverts promoted the benefits of adopting a more plant-based diet to benefit the environment. The upshots from the two rulings are: (1) claims are likely to be acceptable when they express in general terms and without product-specific claims that a more plant-based diet can reduce environmental impact, (2) a product being plantbased is no guarantee of being environmentally-friendly, and (3) comparative claims are likely to be misleading unless there is robust evidence of a product's environmental credentials (over the full life cycle) compared to the product being substituted. The Sainsbury's adverts encouraged consumers to substitute half the meat used in a dish for chickpeas or lentils, and that this was `better for the planet' or would `help our health and planet' (depending on either TV or radio advert). The complainants challenged whether the environmental benefit claims could be substantiated as the vegetables in question being grown and imported from abroad could have a greater impact on the environment than locallysourced meat. The ASA ruled that the adverts made a general claim that reducing meat consumption was better for the environment, based on the impact associated with meat compared with plant proteins. Emphasis was on promoting a change in diet rather than promoting a particular product range (the general ingredients featured could be purchased at many retailers) or comparing specific products against each other. Because the ads were limited to promoting the general benefits to the environment of reducing meat protein in substitution for plant protein, the adverts were not misleading. On the same day, the ASA found that Tesco adverts that promoted a move from meat products to Tesco's own plant-based product range (Plant Chef) as being good for the planet went beyond general claims about swapping from meat to plant-based food. It considered that, in order for the adverts to comply with applicable advertising codes, Tesco would need to have evidence that its Plant Chef products would positively affect the environment based on their full environmental lifecycle, in comparison with meat alternatives. As Tesco did not hold such evidence, the ASA concluded the claims had not been substantiated and were likely to mislead. Tesco was ordered to not allow the adverts to appear again in their current form.
UK government comments on European Commission's proposal for Corporate Sustainability Due Diligence Directive. The Minister for Business, Energy and Corporate Responsibility in the Department for Business, Energy & Industrial Strategy (BEIS), wrote a letter to Darren Jones MP, chair of the BEIS committee. The letter sets out the UK government's comments on the Commission's proposal in February 2022 for a Corporate Sustainability Due Diligence Directive (CSDD Directive), designed to improve sustainability due diligence in supply chains in the EU. UK companies should be aware that, under the current Commission proposals, they may be obliged to report under the CSDD Directive if they generate sufficient turnover in the EU (either through having a branch, or through export activities). Due diligence disclosures may be considered in the context of the International Sustainability Standards Board's efforts to harmonise standards for environmental, social and governance (ESG) reporting, which the government plans to adopt for UK businesses. In the meantime, the government will continue to monitor the proposed CSDD Directive and how it may apply to UK companies.
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Government consults on improved reporting of food waste by large businesses in England. On 13 June 2022, DEFRA published a consultation on improved reporting of food waste by large food businesses. This follows the Commission's consultation on binding targets to reduce waste in the EU. The UK government consultation follows existing commitments under the 2018 Resources and Waste Strategy for England. Options presented by DEFRA are to enhance current voluntary agreements by extending the Field Force (team of sector specialists) to take up voluntary measurements and reporting of food waste (Option 1) or to require food waste measurement and reporting for large businesses (Option 2). Ahead of closing on 5 September 2022, the consultation proposes that all `large' food businesses (with two of the following: turnover of 36 million, a balance sheet of over 18 million, or 250 or more employees) should fall in scope. The consultation considers how this could apply to a number of different businesses, for instance franchises (head offices would report on behalf of the whole franchise), and contract packing where a business' own operations are packing for a food brand (where one business is in scope, they would shoulder responsibility for quantifying and reporting, whereas where both businesses were in scope, the brand/product owner would be responsible). Proposals on reporting, compliance and enforcement are also included. Environmental permitting legislation would be amended to require large food businesses to report their food waste data to the EA. Most notably, proposals under Option 2 require businesses in scope to have a waste permit exemption, and this would effectively make the production of food waste a waste management activity. Environmental permitting offences would be triggered in the event of breaches or failure to register, and the regulator's enforcement and sanction policy would apply.
Tory MPs urge government to `rebalance' precautionary principle. Backbench Conservative MPs have urged the government to "push ahead in rebalancing the precautionary principle" and cut "red tape [that is] slowing innovation and gumming up the introduction of new pesticides". In a publication titled `Green Light: Innovative Approaches to Decarbonisation' by the Free Market Forum (FMF), it is asserted that the precautionary principle has been "regrettably, taken to the extremes". In the FMF publication, Tory MP Alexander Stafford calls on the government to "reconsider EU regulations on pesticides" and "allow for the mutual recognition of new products developed in other well-regulated economies such as the United States". The FMF is not alone- the Brexit opportunities minister, Jacob Rees-Mogg, appeared keen to do away with the precautionary principle while giving evidence to a committee of MPs. Conversely, environmental groups fear the dangerous consequences of the UK government watering down an environmental principle that has been key in the fight to protect the environment and human health.
Peers recommend cross-department monitoring of environmental principles. The House of Lords Secondary Legislation Scrutiny Committee's (Committee) has reviewed the government's environmental principles policy statement (EPPS) and found that it is essential that all government departments should monitor and evaluate how environmental principles, such as `the polluter pays', are used. The EPPS is intended to guide ministers when making policy, and is undergoing Parliamentary scrutiny. DEFRA came under fire for not explaining the principles in the explanatory memorandum (EM) laid before Parliament, with the Committee stating that the "purpose of an EM is to provide Parliament, those affected by changes in the law and the wider public with an accessible, stand-alone, comprehensive explanation; it should not be necessary for the reader to consult other documents in order to achieve an understanding of what the legislation does". We will report on further scrutiny of the EPPS from the Environment, Food and Rural Affairs Committee when published.
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OEP publishes strategy, enforcement policy and first corporate plan. On 23 June 2022, the Office for Environmental Protection (OEP) published its finalised strategy and enforcement policy following a January 2022 consultation. In the finalised strategy, the OEP has detailed its approach to working with organisations in Northern Ireland, the Republic of Ireland and with the Commission (EU) on particular areas, as well as how it will consider transboundary issues. In the finalised enforcement policy, the OEP has notably clarified the definition of "environmental law" which it can take enforcement action for when a public authority fails to comply. The OEP will review the policy in 18 months to ensure it has been delivered. On the same day, the OEP published its corporate plan (see OEP press release), which sets out a work programme for its first operational year. This indicates it will prioritise work on nature recovery and the quality of air, water, soil and the marine environment.
Government publishes response to consultation on Persistent Organic Pollutants (POPs) national implementation plan for 2021. On 23 June 2022, DEFRA and the devolved administrations published the government response to their March 2021 consultation on the updated UK national implementation plan (NIP) for 2021, under the Stockholm Convention on POPs (the Convention), with the objective of reducing and eliminating these toxic chemicals that persist in the environment, and may accumulate in food and in human tissue. Parties to the Convention must periodically develop and implement a NIP setting out how they will implement their obligations under the Convention. Alongside the response, government is also developing a chemicals strategy, which will set out immediate priorities alongside longer-term actions to achieve safer and more environmentally sustainable management of chemicals.
NGOs demand DEFRA `urgently ban' or restrict 9,000+ PFAS "forever chemicals". Per- and polyfluorinated alkyl substances (PFAS) chemicals are linked to cancers and other diseases. They are manmade and do not break down in the environment. A group of 30 NGOs (including FIDRA, Greenpeace, Breast Cancer UK, Wildlife and Countryside Link, and FoE) has demanded that government act to regulate the thousands of PFAS chemicals as one group, rather than individually. The letter claims there is "clear and unequivocal" evidence of PFAS causing unacceptable global contamination of the environment, wildlife and human populations. Chemicals regulators have called for evidence on ideas for controls on "forever chemicals", which the NGOs claim "presents an opportunity for the UK to take worldleading action by restricting the production and use of all PFAS chemicals as one group under UK REACH by 2025". In the EU, the Netherlands, Germany, Norway, Denmark and Sweden jointly preparing PFAS restrictions, with plans to submit a proposal to the European Chemicals Agency (ECHA) in January 2023. Jurisdictions like the US have conducted more research into the extent of PFAS contamination, whereas in the UK there has been no routine testing regime for PFAS. In December 2020, the UK Drinking Water Inspectorate published a report on the risks of PFAS and whether water companies will be able to adequately measure compliance with the EU's proposed Drinking Water Directive.
Government to consult on implementing a carbon border adjustment mechanism (CBAM). The Environmental Audit Committee (EAC) published the government response to the EAC's April 2022 report, Greening imports: a UK carbon border approach, which gave recommendations to the government on implementing a domestic CBAM to address carbon leakage (and an accompanying press release). Its goal would be to help reduce the risk of carbon leakage by encouraging non-UK producers to decarbonise their processes. The government confirmed in its response that it would consult in 2022 on implementing a CBAM and product standards to address carbon leakage, its intention to work with low and middle-income countries to align CBAM policy with the interests of consumers, and is that it is engaging with the EU on its proposals for CBAM.
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Environmental permitting: standard rules permits consultation. On 20 June 2022, the EA called for views on our proposals to change standard rules permits for the non-hazardous and inert waste, and metals recycling sectors. The proposed changes are new standard rules sets consolidating existing rule sets for hazardous waste, generic risk assessments for the new rules sets, proposed standard rules application and subsistence charges, revisions to the rule sets for the metals recycling sector, revisions to standard rule SR2010 No 3 relating to discharges to surface water and distance criteria to foul sewer. The consultation will close on 13 September 2022.
Dairy Crest Limited given record fine for Davidstow environmental offences. The maker of brands such as Cathedral City was fined 1.5 million on 23 June 2022 (and ordered to pay 272,747 in costs) for environmental performance on liquid waste, odour and environmental reporting. Since beginning to focus on whey processing, the company has caused unacceptable levels of pollution to the local river, causing significant harm to fish and other wildlife. Offences included releasing harmful biocide into the river and killing thousands of fish in 2016, coating the river with noxious black sludge for 5 kilometres in 2018, consistently exceeding limits on substances like phosphorous from 2016 to 2021, releasing powerful odours disrupting the lives of local residents for years, and failing to tell the EA within 24 hours of when things had gone wrong on site (on 7 separate occasions). The fine was so severe partly for lack of improvement in performance over a 5-year period, the judge highlighted that senior management ought to have dealt with the poor middle management culture far sooner.
Company fined 120,000 following EA prosecution for illegal discharge of anaerobic digestate and sugar beet washing into a watercourse and failure to comply with nitrate regulations. EA officers were told that the farming business used a lagoon to store digestate and an underground pump system to spread liquid as a fertiliser. Farm employees said they did not maintain records of the volumes in the lagoon and had no maintenance records. A faulty pipe caused the anaerobic digestate to discharge into local watercourse. A further offence was recorded in May 2018 when company officials notified the EA that foam had been reported in a nearby brook. The company further admitted having no nitrogen fertilizer plan and that 19 fields had been treated with amounts of nitrogen exceeding the 250 kilogram per hectare limit.
Fines for water company after river pollution kills fish. The company operated a sewage treatment works. Following a fire in 2016, all three pumps in one of the pump stations failed and untreated sewage flowed out and into the river, resulting in over 5,000 dead fish and invertebrates for 5 kilometres. Further investigations found that the company's pumps were over 40 years old and, following a previously failure in 2013, only 2 out of the 3 were refurbished. The company pleaded guilty in September 2021 to causing an unpermitted pollution discharge contrary to regulations 12(1) (b) and 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2010. At the sentencing hearing in May 2022, the company was fined 300,000 for this incident. Just a few days later, it was fined 50,000 (and ordered to pay approx 24,388 in costs) for a separate incident of raw sewage leaking into a river in January 2019. In this second case, a temporary over-pumping system installed by a contractor following a collapse became blocked with items that should not be flushed (eg: baby wipes), and the sewage flooded out into the river for over 10 hours. Neither the company nor the contractor reported the incident to the Environment Agency (EA). Investigations later found that the watercourse had been polluted up to 1.6 kilometres and that over 2,400 fish had died, including a critically endangered European eel.
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EA publishes enforcement undertaking cases. Notable examples of cases for which the EA has accepted an enforcement undertaking or imposed a civil sanction for environmental offences under the Environmental Permitting (England and Wales) Regulations 2010/2016 are Yorkshire Water Services Limited (permit breach at a sewage pumping station in 2018 resulting in 150,000 contribution to Yorkshire Wildlife Trust; operating without a permit at a regulated facility resulting in 250,000 contribution to Yorkshire Wildlife Trust), Whites Recycling Limited (failure to comply with permit conditions at a regulated facility for mobile plant; 100,000 contribution to Tees Rivers Charitable Trust). Sanctions under the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 included NCR Financial Solutions Group Limited and NCR Limited giving undertakings regarding failure to register and to take reasonable steps to recover and recycle packaging waste (contributions of 18,853.11 and 35,353.88 to the Woodland Trust).
HSE Publishes new GB mandatory classification and labelling (GB MCL) Agency Opinions. Substances and mixtures placed on the GB market must be classified and labelled in line with the GB CLP Regulation. If a business is classifying a substance that appears in the GB MCL List, then it must use the mandatory classification and labelling that appears in this list. A GB MCL Agency Opinion formally proposes new or updated GB mandatory classification and labelling for chemical substances. The GB MCL List is amended annually to keep the entries up to date with scientific and technical developments. The next batch of 30 GB MCL Agency Opinions are now available for download in the GB MCL publication table (.xlsx). At the time of publication, the classification and labelling proposed in these Agency Opinions has not been agreed and/or adopted in GB.
HSE releases UK REACH Consolidated Report and Work Programme for 2022/23. The report outlines the relevant UK REACH activities for the last calendar year, and the Work Programme sets out the activity that the HSE will carry out to operate UK REACH in 2022/23 (supported by the EA). The Work Programme has various categories: industry-initiated (eg: account management of new registrations, testing proposed evaluations, Helpdesk, enforcement), demand-led (eg: compliance check, recommendation for additions to the Authorisation list), government-initiated (substance evaluation, Regulatory Management Options Analysis, restrictions, identification of substances of very high concern), and others like maintaining the website guidance, managing stakeholder engagement and scientific advice, training and development of HSE and EA staff. We previously reported that National Audit Office expects the HSE to need 4 years before it is able to regulate chemicals post-Brexit, partly on account of staffing issues. The Work Programme also includes an annex allocating enforcement responsibility for UK REACH between different bodies.
EU
Commission releases new Blue Guide on the implementation of EU product rules 2022. The Blue Guide is designed to allow better understanding of EU product rules and facilitate their uniform application in the Single Market. Previous guidance on what constituted `placement' on the market dated from 2016. Since initial publication in 2000, the Blue Guide has become a major reference document. This new version builds on previous editions and reflects recent developments in legislation, in particular the adoption of a Regulation on Market Surveillance 2019/1020. It also addresses distance sales and making products available on the market subject to physical or software modifications/ updates.
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Commission updates legislative and policy timeline until the end of 2022. The Commission made available an updated tentative agenda of its College of Commissioners. It provides the indicative planning when it intends to adopt legislative and policy documents until December 2022. It foresees two important legislative packages in the area of environmental policy. The Zero Pollution Package (planned for 26 October) includes: (1) The revised list of surface and groundwater pollutants; (2) The revision of EU ambient air quality legislation (Directives 2004/107 and 2008/50) (please see Sustainability Outlook October 2021); (3) The review of the Urban Wastewater Treatment Directive 91/271; (4) The revision of the Classification, Labelling and Packaging of Chemicals Regulation 1907/2006 (CLP Regulation) (please see Sustainability Outlook August 2021). The Circular Economy Package II (planned for 30 November) includes: (1) The proposal for a regulation on substantiating environmental claims (please see Sustainability Outlook December 2021) (2) A policy framework for bio-based, biodegradable and compostable plastics (please see Sustainability Outlook January 2022); (3) The review of the Packaging and Packaging Waste Directive 94/62 (PPWD); (4) Proposal on measures to reduce the release of microplastics (please see Sustainability Outlook February 2022); (5) The "right to repair" initiative (please see Sustainability Outlook January 2022); Also, on 30 November, the Commission plans to adopt its proposal on carbon removals certification (please see Sustainability Outlook February 2022). The Commission had planned to adopt most of these proposals earlier, but it had to delay them.
European Parliament agrees its position for ETS and CBAM after some controversy. The European Parliament agreed on its negotiating position on the revision of the Emissions Trading System (ETS) and the new CBAM. The adopted position wants free allocation in the ETS sectors covered by the CBAM to be phased out between 2027 and 2032, three years earlier than foreseen by the Commission. The Parliament also wants to increase the Commission's overall ambition to reduce emissions in the ETS sectors from 61% to 63% by 2030, compared to 2005. It also proposes a separate new emissions trading system (ETS II) for fuel distribution for commercial road transport and buildings by 2024 one year earlier than proposed by the Commission. The Parliament's position would also include municipal waste incineration in the ETS from 2026 (as already foreseen in the Environment, Public Health and Food Safety Committee (ENVI) Draft Report (please see Sustainability Outlook May 2022). The Parliament also adopted a negotiating position on the CBAM itself (please see Sustainability Outlook March 2022 and Sustainability Outlook July 2021). In addition to the products proposed by the Commission (iron and steel, refineries, cement, organic basic chemicals and fertilisers), Parliament wants it to also cover organic chemicals, plastics, hydrogen and ammonia. The European Parliament is now ready to start legislative negotiations (so-called trilogues) with the Council as the other co-legislator, with a view to amending and adopting the proposals of the Commission.
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Council adopts its position on ETS and Commission to consider including waste incineration from 2031. The Council adopted its General Approach (i.e. its final negotiating position) on the revision of the ETS) (please see Sustainability Outlook January 2022). It agrees with the Commission's overall ambition of reducing GHG emissions by 61% by 2030. The Council also agreed to a one-off reduction of the overall emissions ceiling by 117 million allowances (so-called "re-basing") and to the increase in the annual reduction rate of the cap by 4.2% per year ("linear reduction factor"). The text put forward for vote does not include municipal waste incineration in the ETS. Rather, it wants to task the Commission with assessing the impact and feasibility of including municipal waste incinerators in the ETS from 2031, taking into account the effects on the internal market, potential distortions of competition, environmental integrity as well as alignment with the objectives of the Waste Framework Directive 2008/98, among other things. The Council agreed to create a new, separate ETS for the buildings and road transport sectors (to apply to distributors that supply fuels for consumption in these sectors). The Council agreed with the proposal to end free allowances for the sectors covered by the CBAM (please see Sustainability Outlook March 2022 and Sustainability Outlook July 2021) progressively, over a 10-year period between 2026 and 2035. Now that the Council has agreed its positions on the proposals, negotiations with the European Parliament can begin with a view to amending and adopting the final law.
European Parliament Committees object to labelling gas and nuclear activities as sustainable. The Committees for Economic and Monetary Affairs (ECON) and the ENVI adopted a draft motion for a resolution of the European Parliament objecting to the European Commission classifying nuclear and gas energy as sustainable (please see Sustainability Outlook February 2022). The draft motion received only a narrow majority (76 votes to 62 votes with four abstentions), indicating how controversial the topic is. The Commission proposal for a Taxonomy Complementary Delegated Act (CDA) sets conditions for considering certain nuclear and gas activities as transitional activities under Taxonomy Regulation 2020/852. Transitional activities are those which cannot yet be replaced by technologically and economically feasible low-carbon alternatives, but do contribute to climate change mitigation and have the potential to play a major role in the transition to a climate-neutral economy. The CDA includes three natural gas activities and three nuclear activities, subject to certain technical screening criteria. The resolution is scheduled for a vote by the plenary of Parliament in July. Council and Parliament have until 11 July to object and effectively veto the Commission proposal. If neither of the institutions objects with the requisite majority (in the case of the Parliament 353 members), the CDA will enter into force.
Commission updates the definition of nanomaterial. The Commission issued a non-binding recommendation on the definition of nanomaterial. It replaces the definition from 2011. According to the Commission, the changes in the definition were developed following a comprehensive review, and should allow easier and more efficient implementation, but will not significantly affect the scope of identified nanomaterials. The new definition should be used in EU and national legislation, policy and research programmes. The new definition is one of the deliverables of the Commission under the Chemical Strategy for Sustainability (CSS), in which the Commission committed to reviewing it and ensuring its coherent application across legislation. Nanomaterials are subject to specific regulatory scrutiny, both under general chemicals legislation (REACH Regulation 1907/2006) and by sectoral legislation addressing their use in certain products, such as biocides, cosmetics or food.
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Commission considers EU audit system to enforce chemicals regulation. Consultancy Milieu presented the results of a study it conducted for the Commission on a comprehensive audit system of both regular and targeted controls on REACH compliance to Competent Authorities for REACH and CLP (CARACAL). This system would be part of a newly established European Audit Capacity (EAC). The Commission had committed to such a regime to ensure compliance with, and enforcement of, the EU chemicals legislation, in particular REACH, in its Chemical Strategy for Sustainability (CSS). Consultancy Milieu assessed for the Commission the possible form of EAC and what benefits it might bring. Milieu concluded that the broader the coverage of the audit system and the wider the representativeness of Member States audited, the more effective it will be.
EU co-legislators agree to reduce limit values for POPs in waste. The Council and European Parliament reached a provisional agreement on the revision of Annexes IV and V of the POPs Regulation. According to the press release of the Council, both co-legislators agreed to include PFOAs and PFHxS in the regulation, and limit values for other existing entries are being reduced. For all these thresholds, the provisional agreement foresees a review clause for the Commission to possibly propose a further reduction five years after the entry into force. Additionally, the Commission will be tasked with considering whether it is necessary to amend EU waste legislation in order to ensure that waste containing any POPs exceeding the limits is classified as hazardous and to put forward a legislative proposal within three years after entry into force. The text of the provisional agreement is not yet available. The provisional agreement is expected to be put for a final vote in Parliament after the summer and then to be formally adopted by the Council.
Commission concludes evaluation of food contact materials legislation. The Commission has published the evaluation of the Food Contact Materials (FCM) Regulation 1935/2004, which it formally started in November 2017, along with the opinion of its Regulatory Scrutiny Board. The Commission found that the FCM Regulation is broadly achieving its objectives. The main deficiencies of the legislation are stated to be the lack of specific rules for FCMs other than plastic, the inability to demonstrate compliance, the unavailability of information in the supply chain, the challenges in enforcement and the lack of prioritisation of the most hazardous substances. Also, the current legislation and approaches are largely incompatible with current trends in the switch from "materials synthesised from traditional chemistry such as polymers to more novel or natural, sustainable alternatives". The Commission will conduct an open public consultation on the revision of the FCM Regulation 1935/2004 later this year and is expected to adopt the proposal for a revised regulation in Q3 2023. In that proposal, it may address some of the deficiencies described above.
Commission consults on sustainable food systems initiative. The Commission opened a public consultation on a sustainable food systems framework initiative. This initiative aims to mainstream sustainability in all EU policies related to food and strengthen the EU food system.
It asks about policy measures similar to those provided in the roadmap from September 2021, including, for example, establishing sustainability principles and objectives, and setting general minimum standards for foods produced or placed on the EU market, which could be linked to environmental and social aspects (including legitimate and proportionate requirements for imported food products). The consultation also asks about establishing sustainability labels for food products, i.e. information on the nutritional, climate, environmental, animal welfare and social aspects, and which form these should have (voluntary/mandatory; for all products/only EU products). It also addresses public procurement of food served in schools and public institutions. The survey is open until 21 July 2022. The Commission plans to adopt the proposal (whose legal form is not yet determined) in Q4 2023. Then, it will sent the proposal to the co-legislators (Council and European Parliament) for amendment and adoption.
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European Parliament Committee adopts report on product safety rules. The Internal Market Committee of the European Parliament (IMCO) adopted, by a large majority, its report on the proposal for a regulation on general product safety (please see Sustainability Outlook July 2021). It seeks to amend the proposal of the Commission for a new regulation repealing the General Product Safety Directive 2001/95. The new rules aim to ensure that all kinds of products in the EU comply with the highest safety requirements. For example, it provides clearer rules for economic operators, in particular online marketplaces. Economic operators may additionally make the information they are required to provide available in digital format by means of electronic solutions, such as QR or data matrix codes. Once the plenary of the Parliament and the Council adopt their negotiating mandate, inter-institutional talks between both institutions could then start with a view to adopt the new regulation. The proposal provides that it will apply six months after its entry into force.
UN countries agree on further regulating e-waste shipments and banning harmful chemicals. This month, the Conferences of the Parties to the Basel, Rotterdam and Stockholm Conventions (BSR COPs) took place in Geneva. Amongst other things, the signatories of these international treaties (which include the EU and its Member States) agreed: (1) to amend Annexes II, VIII and IX of the Basel Convention to ensure that all transboundary movements of electrical and electronic wastes (WEEE), whether hazardous or not, are subject to the prior informed consent of the importing state and any state of transit, from 2025; (2) on a global ban of perfluorohexane sulfonic acid (PFHxS), its salts and PFHxS-related compounds by adding them to Annex A of the Stockholm Convention; and (3) to make decabromodiphenyl ether (decaBDE), and perfluorooctanoic acid (PFOA), its salts and PFOA-related compounds subject to the prior informed consent procedure under the Rotterdam Convention. The EU is expected to implement these changes by amending the following EU legislation: the Waste Shipment Regulation 1013/2006, the POPs Regulation 2019/1021 and the Regulation 649/2012 concerning the export and import of hazardous chemicals, respectively.
Contacts
Rob Elvin Partner, Manchester T +44 161 830 5257 E [email protected]
Nicola A. Smith Partner, Birmingham T +44 121 222 3230 E [email protected]
David Gordon Partner, Birmingham T +44 121 222 3204 E [email protected]
Anita Lloyd Director, Birmingham T +44 121 222 3504 E [email protected]
Josep Nicolas Bellot Public Policy Specialist, Brussels T +322 627 11 09 E [email protected]
Gary Lewis Director, Manchester T +44 161 830 5373 E [email protected]
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