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Legal implications on innovative food marketing, food design and food distribution

01 February 2018
New technology is transforming the food supply chain from farm to fork. Our research with over 100 c-suite professionals at food manufacturing businesses found that 77% will increase their tech budget by 2020. In this article we explore just a few of the technologies disrupting the sector and some of their legal implications. 

From freshly printed gluten-free pasta in a restaurant to bespoke branded sweet design printed in small batches; and comprehensive monitoring and tamper-proof storage of data for food transport routes via blockchain to smart labels alerting shoppers to when food is reaching its use by date - new technology will change the face of the food sector. 

Where new technologies and distribution channels emerge, new legal challenges arise. Our research with over 100 c-suite professionals at food manufacturing businesses found that 77 per cent will increase their tech budget by 2020, in this article we explore just a few of the technologies disrupting the sector and some of their legal implications. 

Direct to consumer e-commerce

How is it impacting food manufacturing?

Online is now essential to how we all consume information and shop. From the the early aspirational ambitions of Ocado to have an automated distribution centre to online giant Amazon now entering the market, online grocery retail has changed dramatically.

Through these new channels manufactuers have another route to market and by using options like Amazons 'manufacturer fulfilled network' manufacturers have a platform to sell directly to consumers in a way that they may not have considered before. 

For some time retail has become about data, nowhere more so than online. In many ways, manufacturers have been playing catch-up in recognising the value of data and the challenges of data protection and privacy, but many now fully embrace the opportunity for businesses to target marketing campaigns and personalise promotions, which combined with direct consumer access is a powerful combination that the sector is yet to fully exploit.

What would the legal implications be?

Data, data, data - from ensuring compliance with the General Data Protection Regulations, to safeguarding against a data protection breach, it's all about the data. 

3D Printing

How is it impacting food manufacturing?

3D Printing (additive manufacturing) has already revolutionised industries such as aviation and medicine, now the technology is providing completely new opportunities for food preparation. The highly personalised products created using additive manufacturing means it is possible to adapt food to specific requirements such as to a food incompatibility or intolerance or even to individually required shapes - like the 3D printed sweets of the Magic Candy Factory blazing the trail.  The variety of possible applications range from so-called smoothfood for people with chewing and swallowing problems in care homes to fancy creations in high-end gastronomy.

What are the legal implications?

  • Possible intellectual property rights of third parties (copyrights, trademark rights, design rights in particular)
  • Data Protection: for example if a client's personal data is used in the creation of a 3D printed asset  
  • EU Food Law: dealing with labelling concerns when composition of food can be highly personalised and avoiding the product being viewed as novel and/or outside the usual regulatory scheme.
  • Contamination issues: appropriate machinery must be used to ensure there is no contamination of non-food materials, to ensure the final product may be sold as a secure food and avoid liability charges.

Traceability of supply chain (including Blockchain)

How is it impacting food manufacturing?

 Since the horsemeat scandal the traceability of food has never been higher in the public consciousness.  Huge developments in supply chain management and the creative use of technology for monitoring is giving everyone from consumers to retailer's greater transparency along the chain. 

Blockchain (the technology responsible for cryptocurrencies such as Bitcoin) has huge applications here. Put simply, the Blockchain system allows transactional information to be stored, traced and traded securely and privately between multiple users. This has huge applications for the food industry as it means food can be traced back to its origin (for example right back to the fisherman who pulled a fish out of the sea) and (together with hardware technology such as RFID chips) can be traced right through the supply chain in a secure and immutable way. This can even extend to the freight documents for the carrier that were issued by customs being stored directly in the Blockchain.  

Together this shows not only the exact location of the product in real time as well as where it has been, the checks it has passed, appropriate test results but also can work together with other hardware to store information about the state of the product (e.g. which temperatures it has been exposed to) in a tamper- and forgery-proof way.   

What are the legal implications?

  • Digital and global: Blockchain networks can be located across multiple jurisdictions meaning it is difficult to decide which legal frameworks to consider. 
  • Ownership: It may also be difficult to establish ownership and control, and indeed decide which forum should be used to resolve disputes and who is responsible and liable for issues.
  • Unchangeable: By its nature data stored within blockchain is unchangeable. This could have implications further down the line for data protection and privacy.

Nano technology 

How is it impacting food manufacturing?

The alteration of foods at a molecular level – for example, to improve nutrient profile shelf life or provide health benefits without affecting taste – has vast potential, but has yet to reach the mass market.

Where nanotechnology is more advanced is in relation to smart labels, which react to molecular changes in the product – for example, showing when it is ripe or about to go off. Technologies that monitor the freshness of produce could eventually allow retailers to introduce dynamic pricing on fresh foods so that profits are maximized when the quality of the produce is at its peak. 

These responsive designs would also encourage waste prevention, an issue that is seeing increasing levels of public and political scrutiny with the introduction of the idea of the circular economy in the government's recent industrials paper (find out more >). 

Locating alternative sources of protein also remains a challenge, particularly to meet the increased demand from the East. As lab-grown meat becomes a reality, the test will be creating meat of a taste and texture that consumers will enjoy. This cannot be that far away. In the meantime, protein from insects is being pursued with it being an environmentally and resource-friendly alternative.

What are the legal implications?

  • Novel foods are regulated closely across the EU.  If the food is considered to be novel this will dramatically slow down its route to market. 
  • New technology can sometimes react in an unexpected way and therefore it is necessary to carefully risk assess
  • New technology will usually involve intellectual property that it is vital to protect to ensure your competitive advantage. 

How can we help?

We've just scratched the surface of how technology is impacting the food sector. We haven't even touched upon autonomous vehicles and robotics and how they are revolutionizing the agriculture and logistics industries. Whilst there are challenges ahead, the opportunity that technology brings to influence change is greater than ever. We can help you plan for your business, ensuring you understand the bigger picture and the legal solutions available. If you have a question or would like more information please get in touch with one of our experts. 

Nils Wolfgang Bings, LL.M. IP (GWU), 

Marco Müller-ter Jung, LL.M.

Nico Czajkowski, LL.M

Dominic Watkins 

 

Find out about some of the other big trends facing the food industry this year > 

Further Reading

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