Competition law is a minefield

Keeping on the right side of competition law is becoming "more and more tricky", according to the new boss of the Food and Drink Federation (FDF), Ross Warburton.

While discussing price with competitors was clearly out of bounds, said Warburton, it was in "areas like reformulation and portion sizes that you might encounter issues where there is no anti-competitive intent, but to appease one regulator, you could potentially incur the wrath of another"

He added: "It's become more and more tricky to make sure you're not doing anything that might be considered improper. It was a background concern 15 years ago but today we have to be constantly mindful of it."

Following concerns raised by associations such as the FDF about reformulation initiatives to cut salt, fat and sugar, the Food Standards Agency (FSA) has been advised by the Office of Fair Trading that it is "acceptable for individual companies to advise the FSA on technical matters but not for a group of companies or a trade association to agree on a specific target or objective"

Any FSA recommendations must therefore be 'aspirational' (something for individual firms to aspire to), derived in an open/transparent manner, proportionate to the aim and should not serve to exclude players from the market, it added.

This raised some "interesting questions" about the approach used over salt reduction, observed one industry source. "You could argue that the work on salt didn't exactly meet the above criteria." More recent rhetoric about 'aspirational' targets for saturated fat clearly reflected the legal advice outlined above, added the source.

l See interview, p28