Since 21 November 2023, the government has been considering for the second time whether to introduce a mandatory food waste reporting scheme for large food and drinks businesses. The change in position was Defra’s (Department for Environment, Food and Rural Affairs) second unexpected U-turn on the matter in just one year.
This article sets out the timeline of the government’s steps towards mandatory food waste reporting, and why the initial announcement (in July 2023) that the scheme was to be delayed instigated the start of the judicial review process.
Mandatory food waste reporting is different to the proposed mandatory waste tracking programme
It is important to note that the mandatory food waste reporting programme discussed in this article is different to the proposed introduction of the mandatory digital waste tracking. The latter scheme will see the government and devolved administrations collaborate to create a single country-wide waste tracking service.
Timeline of food waste reporting in England
Mandatory food waste reporting for large food and drinks businesses has been on the horizon since at least 2018, when Defra published their Resources and Waste Strategy. This Strategy set out long-term commitments and ambitions to eliminate avoidable waste by 2050.
However, ten years earlier in 2007, the government began entering into voluntary agreements with food businesses and consumer campaigns. These agreements are managed by the Waste and Resources Action Programme (WRAP), the body appointed by the government to run this voluntary scheme. The latest agreement is the Courtauld Commitment 2030, which unites organisations across the supply chain to reduce food waste. Courtauld 2030 sets a target of a 50% per capita reduction in food waste between 2007 and 2030, in line with United Nation’s Sustainable Development Goal 12.3. Several working groups have been set up under the Courtauld banner to address Goal 12.3.
Further, between 2019 and 2020, the government made available £15 million through a pilot fund, The Resource Action Fund, for the redistribution of surplus food to tackle food waste. The Fund was delivered by the WRAP and it provided a programme of grants to support organisations (such as retailers and food manufacturers) to redistribute surplus food.
In June 2022, the government launched a consultation on improved food waste reporting by large food businesses in England. The purpose of the consultation was to gather opinions from food and drinks businesses about: the preferred method of food waste reporting, the size and type of business that should be caught under the scheme, exactly what waste should be reported and how the regulations are to be enforced. The consultation also provided three options for food waste reporting: carry on as before, require food waste measurement and reporting for large businesses or enhance voluntary agreements.
Despite 99% of respondents to the consultation supporting the regulatory approach to food waste reporting for large businesses, Defra confirmed in July 2023 that the scheme was not going forwards and would be delayed until at least the end of 2026.
As a result of the July 2023 announcement, the food and environment campaign group, Feedback instigated the start of judicial review proceedings. A pre-action protocol letter, announcing the start of the judicial review process, was sent to Secretary of State for Defra. Feedback then launched a legal challenge of that decision.
In response to the pre-action protocol letter, Defra withdrew its previous response to the consultation and made a second announcement on 21 November 2023: that they are reconsidering whether to introduce the mandatory food waste reporting scheme. Days after taking over from Thérèse Coffey, the new Secretary of State for Defra, Steve Barclay, said that Defra will “reconsider whether there should be mandatory food waste reporting in the future”. The announcement was published via an update to the consultation page on GOV.UK.
Subsequently, in February 2024, Defra consulted again with large food businesses on mandatory food waste reporting via the questionnaire Food Waste Measurement & Reporting: Barriers, Enables and Consumer Impact. The consultation closed on 1 March 2023.
Accordingly, more announcements from Defra are anticipated during 2024. However, at present, waste reporting requirements for food and drinks companies remains voluntary via the Food Waste Reduction Roadmap (FWRR).
Why was the mandatory food waste reporting programme considered necessary?
Food waste is an environmental issue for two reasons. Firstly, food production requires significant use of water, energy and land resources. Consequently, when food is wasted, resources spent on its production are wasted also. Secondly, food waste contributes considerably to greenhouse gases. Rotting food waste produces methane, a greenhouse gas that is 25 times more potent than carbon dioxide.
The US Department of Agriculture also reported in 2022 that in the US alone, food waste creates greenhouse gases that are equivalent to the emissions from 32.6 million cars. Further, the Intergovernmental Panel on Climate Change estimated in 2022 that food waste contributes 8-10% of total man-made greenhouse gas (GHG) emissions.
Regarding food waste in the UK, a report by the WRAP in November 2023 estimates that 9.5 million tonnes of food and drink are wasted annually in the UK, once the food has left the farm. This is worth around £19 billion. In the same report, the WRAP also estimated that around 70% of this is avoidable.
Defra also acknowledged the extent to which food waste contributes to the UK’s green footprint in their July 2023 update. They cited figures from the Climate Change Committee 2022 Progress Report showing that almost 6% of UK emissions derived from waste emissions in 2020. Much of these emissions come from landfill, particularly biodegradable waste which degrades anaerobically.
Interestingly, as of 2021, 70% of food waste within the UK derives from household food waste. However, scrapping the mandatory food waste reporting scheme for businesses was enough to trigger legal action.
Why did Feedback commence judicial review?
The response to the government’s June 2022 consultation was overwhelmingly positive. The predominant view from respondents (80%) was in favour of requiring food waste measurement and reporting for large food businesses (p.6 of the response). Further, the majority of respondents confirmed they believed that food waste reporting must be made mandatory (p. 11 of the response).
Furthermore, civil servants had reported that the mandatory reporting scheme would save businesses money. These figures were set out in the government’s impact assessment. The assessment estimated that the costs to measure food waste would amount to £19 per tonne, in comparison to saving £1,189-£3,099 with each tonne of food waste reduction.
Additionally, the WRAP also reported that the scheme will cut costs for businesses. They stated that an emphasis on voluntarywaste reporting would actually be more expensive than mandatory reporting. The WRAP also emphasised that mandatory reporting is “essential” because of to a “disappointing” number of businesses engaging with the voluntary reporting scheme.
Moreover, the body who advises the government on emissions targets, the Climate Change Committee (CCC), informed the government that mandatory reporting should be introduced by 2022. This has been ignored.
Despite the evidence gathered by civil servants and the WRAP, Defra blamed financial burdens on the consumer as the main reason behind scrapping the scheme. The Department did acknowledge that reducing food waste would in fact bring financial savings to businesses. However, it decided that a “regulatory approach is not suitable at this time, especially when any additional costs may be passed on to consumers.”
As such, Feedback’s pre-action protocol letter was delivered on the basis that Defra’s decision to stall plans for mandatory food waste reporting was not based on a reasonable or rational view of the evidence that the government had received during its consultation into the proposals.
Feedback (represented by Leigh Day) raised three main points in their grounds for judicial review: the conclusion was irrational as it failed to consider evidence on costs, expert advice had not properly been considered and the government had carried out an inadequate impact assessment.
Feedback’s official grounds for judicial review were:
“The Defendant’s reliance on the allegedly high costs of mandatory reporting was irrational because it failed to take into account her department’s own evidence on costs, including clear evidence on indirect cost savings.
The Defendant failed to carry out a lawful consultation. The Decision was not based on a reasonable or rational view of the evidence in terms of who responded to the consultation as well in respect of the costs issue.
The Defendant failed to take into account the advice of the expert advisory bodies, the Climate Change Committee and Waste and Resources Action Programme.
The Defendant failed to take into account climate-based considerations, including greenhouse gas emissions reductions.”
Regarding the mismatch between the evidence presented and the government’s actions, Leigh Day solicitor Ricardo Gama, who was representing Feedback, said: “All the evidence shows that the costs to the shopper of introducing a mandatory requirement will be massively outweighed by savings which would be achieved by reductions in food waste. Our clients say it is impossible to see how the government’s decision can be based on a rational reading of the evidence.”
What now?
As of 21 November 2023, Defra announced that they were reconsidering the introduction of the mandatory reporting scheme for large food and drinks businesses. Another statement from Defra is therefore imminent. At present, the voluntary food waste reporting system for large food and drink businesses remains voluntary, via the Food Waste Reduction Roadmap.
However, the voluntary reporting system has not been particularly successful, as reported by the WRAP themselves. As of September 2022, only 300 businesses and 51 supporting organisations had signed up to the Food Waste Reduction Roadmap. As such, the mandatory reporting scheme is desperately needed.
Defra had attempted to delay the mandatory reporting scheme until at least 2026. It is hoped that, because of Feedback and Leigh Day’s work, the system will be running sooner.
For now, to deliver their goals in the Resources and Waste Strategy (announced in 2018) and to eliminate food waste in landfill by 2030 (to satisfy the Courtauld Commitment 2030), the government is proposing to:
“1. Provide over £1 million in funding in 2023 to 2024 to support consumer campaigns to help households waste less food. Reducing food waste in the home could help to save the average family with children up to £60 every month.
2. Through the Waste and Resources Action Programme we will tackle food waste through campaigns including Love Food Hate Waste and Food Waste Action Week, which support consumers to reduce food waste in their home, saving people money and bringing environmental benefits. For instance the “Unpacking the Opportunity” programme aims to increase the availability of loose fruit and vegetables in shops, saving plastic, waste and enabling people to buy what they need rather than in bulk, helping shoppers manage their budgets.
3. Promote collaboration and cooperation across the supply chain from retailers to manufacturers to the hospitality sector, between public, private and civil society actors through the support of the Courtauld 2030 Commitment and its programmes to reduce food waste. These include supporting the Food Waste Reduction Roadmap and the key tool to Target, Measure and Act on waste as well as specific working groups to promote change and inform policy.
4. Following on from consultation in summer 2022, consider options to improve voluntary food waste reporting by large food businesses in England. By increasing the number of businesses measuring and publicly reporting their food waste, we expect to drive action to reduce it. As outlined in our government response to the consultation which was published in July 2023.
5. Consistent recycling collections for households will come in after the implementation of the extended producer responsibility scheme. More details on this will be set out in due course.
6. Continue to work with the hospitality industry including through the Hospitality Sector Council on co-creating ideas and solutions to tackling waste and the Guardians of Grub campaign which is aimed at raising the profile of food waste prevention in the hospitality industry supporting the reduction of food waste in the preparation and serving of food.”
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