Food industry seeks no-deal competition waiver

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The food industry has asked the government to waive aspects of competition law to allow firms to co-ordinate and direct supplies with each other after a no-deal Brexit.

Retailers and suppliers have repeatedly asked the government for clarity, as discussing supply and pricing would be illegal under competition law.

The Food and Drink Federation (FDF) said: “We asked for these reassurances at the end of last year.

“But we’re still waiting.”

The boss of one leading retailer told the BBC: “At the extreme, people like me and people from government will have to decide where lorries go to keep food supply chain going. And in that scenario we’d have to work with competitors, and the government would have to suspend competition laws”.

The FDF’s chief operating officer Tim Rycroft said: “In the event of no-deal disruption, if the government wants the food supply chain to work together to tackle likely shortages – to decide where to prioritise shipments – they will have to provide cast-iron written reassurances that competition law will not be strictly applied to those discussions.”

He said that without these assurances, companies could risk being fined by the Competition and Markets Authority (CMA).

“We asked for these reassurances at the end of last year,” said Mr Rycroft. “And, despite support from the Department for Environment, Food and Rural Affairs, we’re still waiting.”

The Department for Business, Energy and Industrial Strategy has not responded to a request for comment.

There is precedent for the government or competition authorities to act in this way, with industry pointing to waiving or changing of aspects of competition and merger law during, for example, the financial crisis when banking group Lloyds TSB rescued HBOS.

But John Fingleton, the former head of the Office for Fair Trading, warned: “The last time something like this happened was in relation to dairy prices in 2001 when companies incorrectly thought government words about higher prices for dairy farmers would protect them from competition law. It did not.”

As a consequence, supermarkets faced huge fines for price fixing.

‘Letter of comfort’

The FDF said it has repeatedly asked government to direct the CMA to issue a “letter of comfort” to the industry that such coordination would be considered legal, in the public interest and that the strict letter of the law would not be enforced in this situation.

The industry claims that the government, in internal discussions, has played down the impact a no deal Brexit would have on the overall food supply.

One industry member said that a year ago: “Food was part of the conversation in terms of what to prioritise in a no deal Brexit”.

That has changed with the government now privately acknowledging there may be an impact on price and choice rather than overall availability.

The change in date for the UK to leave the European Union from the end of March to the end of October is also causing problems for the food industry as it relies more heavily on Europe for fresh food at this time of year.

There is also a lack of warehouse space available for stockpiling.

One retailer said that 31 October “is about the worst day you can pick,” because warehouse capacity is at 105% in November, versus 75-80% in March.

They said that the UK would needs 30 massive empty warehouses to store just a week’s extra food supply.

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