Few things fill food and drink entrepreneurs with more fear than navigating the legal minefields that surround the industry. But knowledge is power!
We asked Kristy Coleman, partner at Greengage, a law firm specialising in food and creative industries, to share some of her advice for any food or drink business who sell or market their products online.
Now that almost every food business has an online presence and often a Direct-to-Consumer sales channel, this advice is more important than ever. So, here are the top 6 things Kristy thinks you need to know:
1. Regulations: whether you sell food to consumers or business to business, you need to be aware of and understand the regulations and codes that apply to the sale and marketing of food online. For example, if you sell to consumers, you will have a number of specific obligations to meet, such as the information you give the consumer before they make their purchase (more on this below).
2. Do you need Terms & Conditions? Many of the plug-in shop options for websites generate terms and conditions for you, but they may not be suitable, either for the product you sell, where you are selling the product or who you are selling to. Make sure you read them (as boring as they may be) and make sure they are suitable for your business and needs.
3. Understand about cancellation rights when selling to consumers: If you are selling to consumers, understand what cancellation rights apply to the sale of food and if it applies to the type of food you sell. You need to notify the consumer of their right to cancel (and if it doesn’t apply). The normal rights of cancellation of a contract made online will not apply in relation to the following circumstances (among others):
- food that is made to the consumer’s specification or which is clearly personalised (for example, a cookie decorated for the consumer)
- food which is liable to deteriorate or expire rapidly (such as fresh food); and
- the supply of catering services related to leisure activities, if the contract provides for a specific date or period of performance.
Where one of the above exemptions applies, your website must explain to the consumer that they will not have any rights of cancellation, and why. If you are selling food by subscription be clear with how they can cancel, which is usually before any given delivery or the subscription as a whole on reasonable notice (e.g. 48 hours prior to the delivery date).
Failure to provide the correct information about cancellation may give the consumer the right to cancel plus a right to a full refund, that continues for up to twelve months after the food has been delivered.
4. What you say about your food: Be careful to make sure that everything you say about your food in your advertising and marketing, and on your website, is accurate and that the food you are selling matches the descriptions you have applied to it. You need to make sure that the labelling requirements in relation to the food are complied with on the website as well as on the label. From looking at your website the consumer should be able to gather all the information about your product as if they picked it up in a shop and inspected it. The information provided to consumers in relation to the food needs to comply with the applicable regulations; this will include ensuring that:
- the food is described appropriately;
- the food is labelled appropriately;
- appropriate descriptions of, and information about, the food is provided via your website (prior to the point of sale) as well as via the labelling or otherwise on delivery of the food;
- appropriate information about allergens is provided; and
- appropriate information about storage, preparation and shelf-life is provided;
5. How you market your food: The information provided to consumers in relation to the food (including in the advertising and marketing, as well as on the website, on the labelling or otherwise in association with the food) must be accurate, complete and not misled. The BCAP Code and the CAP Code, which are enforced by the Advertising Standards Authority contain specific restrictions on the advertising of food and drink products in broadcast and non-broadcast media respectively, including on your own website or on social media channels. If your food contains any health or nutrition claims, make sure they are authorised on the Great Britain Health and Nutrition Claims register and meet the conditions for use. Be aware that health and nutrition claims can be implied or express and includes anything said on your website and social media channels.
6. Personal data: if you are processing and collecting personal data, e.g. through a mailing list, when a consumer places an order or through customer service enquiries, there are a number of requirements you need to comply with under the UK General Data Protection Regulation (GDPR). Key obligations include:
- Lawfulness, fairness and transparency: you must process any personal data lawfully, fairly and in a transparent manner, which will usually involve you having a privacy policy letting the consumer know what you are doing and why. Don’t use pre-ticked boxes to signify consent or any other methods of default consent.
- Purpose: you should only collect and process personal data for specified, explicit, and legitimate purposes.
- Storage: don’t keep personal data for longer than necessary and only for the purposes you’ve obtained consent for.
- Accountability: have a process in place for processing personal data, and respond to requests from those exercising their rights under GDPR. You should also register with the Information Commissioners Office as a data processor.
Selling food online can be a complex process to get right, however, with careful planning and knowing your obligations, you can navigate the regulatory landscape. With the right processes and documentation in place, you can relax knowing that your legal bases are covered. So we hope this short post helps you take a step towards legal nirvana!
This article is for information purposes only and is intended to give a summary of certain issues. It should not be relied upon for legal or regulatory advice.
