Wheels in motion for GAFT bike relay

The GAFT bike relay which is raising money for FCN and associated charities is making significant progress.

 Riders from Harpers Feeds, Mole Valley and NWF outside NWF's Devon Mill

Riders from Harpers Feeds, Mole Valley and NWF outside NWF's Devon Mill

In the last week riders from Duffields, United Molasses, Cargill, Gemcom,  ADM Investor Services, Batholomews, Robin Appel Ltd, Clarksons, Humphreys, Openfield, ForFarmers, Gleadell Agriculture, Glencore Agriculture, Mole Valley, Trevor Birchall, Cefetra, Pearce Seeds, NB Pitts, Three Counties Feeds, Crediton Milling, Harpers Feeds and NWF Agriculture have cycled 514 miles through Surrey, Hampshire, Dorset, Somerset, Devon Cornwall, Avon, Gloucestershire and Wiltshire

In the next week the relay continues through Oxfordshire, Buckinghamshire, Cambridgeshire, Essex, Suffolk, Norfolk, Nottinghamshire and Lincolnshire.

Richard Cooksley who is driving the support van says: “The enthusiasm of all involved has been fantastic and we have already had nearly 100 riders taking part, showing the support of the industry for the farming community.”

For more information or to donate to the fund , go to http://www.gaft2018.uk/home/


 

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Posted on July 3, 2018 .

Germinal divests Morton merchant brand to Fane Valley Group

Forage seed specialist the Germinal Group has sold its Joseph Morton agricultural merchanting business in Northern Ireland, based at Banbridge, County Down, to the co-operative Fane Valley Group. Germinal says the decision will allow it to concentrate on its variety development, seed production and wholesale marketing activities.

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 Germinal has sold the Morton’s brand as a going concern, with the retention of all staff. The direct-to-farm retail business operates throughout Northern Ireland, distributing forage and cereal seeds; feed and forage additives; agrochemicals; lime; and agronomy services including soil sampling.

Fane Valley will run the Morton’s brand within its Fane Valley Stores division, and states that there will be no change to the Morton’s business, including its commercial team and the range of products, under the new ownership. Fane Valley Stores already has 16 outlets across Northern Ireland.

The divestment is a strategic move by Germinal to focus on its forage and amenity seed activities in the UK, Ireland and worldwide. The Group recently completed a £1.5 million investment at its GB base in Lincolnshire, including new mixing, packing and palletising facilities and additional storage capacity. It is installing a similar mixing, packing and palletising facility at its Irish base in Tipperary.

Germinal has also established a new research station in southern England to run a new programme of trials and variety development, and continues to invest in plant breeding and sustainable intensification R&D at IBERS in Aberystwyth and its own site in New Zealand.

 “Our success is built on research, variety development, science and knowledge; this is what drives our products and our business,” says Germinal Group managing director William Gilbert. “We feel that this strategic move will result in success for all involved. It will allow Germinal to focus on delivering the high standards expected of the Germinal brand to our customers and other partners.”

“We are grateful for the support of Morton’s customers and suppliers over the years, and we see the sale of Morton’s to Fane Valley as a great fit for both companies, which will maximise the undoubted strengths of the Morton’s brand and personnel.”

Posted on July 3, 2018 .

Food production at heart of agri-food chain’s Brexit manifesto

Companies from the animal feed, seed, agronomy services and fertiliser supply sectors, alongside trade associations representing the interests of businesses across the whole agri-food chain, have called for unqualified government support for the UK food supply chain and the business of food production post-Brexit

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The UK Food Supply Chain Manifesto calls for food production to be firmly at the heart of UK policymaking after the UK leaves the European Union in March next year. It also seeks assurances on future trade; domestic agricultural policy; labour availability and sector regulation.

With less than a year to the Article 50 Brexit deadline of March 2019, the manifesto emphasises the importance of ensuring the UK’s departure from the EU does not undermine the domestic food production and supply sectors.

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The initiative arose out of an industry 360 meeting involving a number of food chain organisations including the Agri-Brexit Coalition group of supply chain bodies It is endorsed by over 100 agri-food companies and trade associations. The manifesto document has been sent to prime minister Theresa May and key cabinet ministers by NFU president Minette Batters on behalf of the 104 signatories.

On trade, the manifesto calls for a mutually beneficial trade agreement with the EU which accounts for 60% of UK food and drink exports and 70% of imports; an agreement with tariff-free trade and a minimum of non-tariff restrictions; and one that maintains continuity in existing trade and avoids a hard border in Northern Ireland. Other trade priorities are for the UK to retain its access to EU preferential global trade agreements during any transition period, and for the government to invest in the resources needed to successfully negotiate independent trade deals.

The future UK domestic farm policy should incentivise producers to become more productive while producing safe, quality and affordable foodstuffs at high standards of animal welfare and environmental protection. It must support R&D and innovation, with changes to existing farm support phased over time. In the longer term, public support must be maintained at levels that support domestic food production alongside the delivery of public goods.

Labour is a critical issue, with a significant proportion of EU nationals already in the UK agri-food workforce. It is vital that the changes ensure access to sufficient permanent and seasonal labour. While the sector could do more to attract indigenous workers, this will take time to develop. Increasing automation also has the potential to mitigate the problem, but again this is a longer-term solution. The manifesto calls for a flexible, simple and low cost migrant worker registration scheme, especially for easy access to seasonal workers, with an immigration white paper proposing measures to address future agri-food labour shortages.

Lastly, post-Brexit regulation must be designed and implemented to ensure the agri-food sector can provide safe and affordable food and drink for domestic and export markets. Rules must comply with international standards and the needs of export markets, while minimising “red-tape” and ensuring consistency. Above all, regulation must be centred on risk-based scientific evaluation.

“I am particularly pleased to see that so many businesses in the agrisupply industry have endorsed this document,” comments Robert Sheasby, incoming chief executive of the Agricultural Industries Confederation. “This level of support reflects the importance of a sustainable agriculture to both supply businesses and their farming customers.”

NFU president Minette Batters adds: "In the manifesto we warn, as a collective, that a Brexit that fails to champion UK food producers and the businesses that rely on them will be bad for the country’s landscape, the economy and critically our society. Conversely, if we get this right, we can all contribute to making Brexit a success for producers, food businesses and the British public, improving productivity, creating jobs and establishing a more sustainable food supply system.

 "As we enter this critical period in the Brexit negotiations, the signatories to this manifesto will be looking to Government to ensure its objectives are aligned with ours to ensure British food production - something of which every person in this country enjoys the benefits - gets the best possible deal post-Brexit."

The food supply chain manifesto represents a sector of the UK economy generating at least £112 billion annually and employing around 4 million people. It meets 61% of the nation's food needs with high-welfare, traceable and affordable food while caring for 75% of the countryside which in turn, delivers over £21bn in tourism back to the economy.

The 8 page manifesto document and full list of signatories is available here.

Posted on July 3, 2018 .

Bayer completes Monsanto acquisition

Bayer formally completed its takeover of the Monsanto business last week, ending a two-year transaction process which doubles the size of the Bayer Crop Science division. Some 25 national and regional competition approvals are in place, with four more pending, of which Argentina is the most important.

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The merged company will trade globally under the Bayer, rather than Monsanto brand, but not until the full divestment of a €9 billion package of seed and crop protection assets to BASF which is expected to take a further two months. The divested package generated €2.2bn sales in 2017.

As far as the UK market is concerned, Bayer will gain from the addition of the Dekalb, vegetable seeds and RoundUp businesses," says Michael Muncey, head of business for Bayer in the UK and Ireland. In particular, DeKalb with its 29% share of the domestic oilseed rape market will more than offset the loss of the InVigor programme, with a 3% share, to BASF.

The EU competition regulator demanded the divestment of seed assets to ensure the presence of a separate major player in this market. A late bid by KWS Seeds for the Nunhems vegetable seed business owned by Bayer was not successful.

Bayer and Monsanto must continue to trade separately, and cannot start the integration process until the BASF divestment is complete, as a condition of US approval for the deal. Bayer first made a bid for Monsanto in May 2016, following the latter’s unsuccessful pursuit of Syngenta which has since been acquired by ChemChina.  Monsanto directors agreed to a $63 billion sale in September that year.

The acquisition was initially funded by bridge financing of $57bn, which Bayer will refinance through a combination of equity - including a rights issue - and debt transactions.

 With combined pro-forma sales of nearly €20 billion after divestments, Bayer will be the global leader in the seed, crop protection and digital farming sectors. Bayer expects the Monsanto acquisition to make a positive contribution to profitability from 2019, with the contribution expected to reach a double-digit percentage by 2012. At the same time, it expects to achieve synergy savings of $1.2bn annually by 2022.

Speaking at Cereals 2018 this week, Mr Muncey noted: “Globally, the new company will have around 8,000 employees just in R&D, with a global network of 35 R&D sites and more than 175 breeding sites. A combination of our scientists’ spirit of discovery, our expertise in technologies, and our profound understanding of plants, soil and entire ecosystems will be underpinned by an unrivalled investment of €2.4 billion per year, delivering more innovations to more farmers faster. Add this to our commitment to the need for sustainability and increased stakeholder engagement and you can see that this is a momentous time for Bayer.”

He added that Bayer’s health and agricultural divisions were now more balanced within the overall group. He predicted that this would open the way for more complementary and holistic approach to improving human health and nutrition, at a time when farm productivity increase is lagging the rate of population growth.

 “The acquisition of Monsanto is a strategic milestone in strengthening our portfolio of leading businesses in health and nutrition,” notes Werner Baumann, chairman of the Bayer board of management. “We will double the size of our agriculture business and create a leading innovation engine in agriculture, positioning us to better serve our customers and unlock the long-term growth potential in the sector.

“We have diligently prepared for the upcoming integration over the past two years,” he continues. Our extensive experience in integrating other large companies has proven that we can and will be successful.”

 

Posted on July 3, 2018 .

Cereals numbers down 11%

Attendance at the latest Cereals Event has continued the downward trend of recent years, but the organiser maintains exhibitors were pleased with the quality of the visitors. It has already booked Cereals 2019.

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Cereals 2018 in Duxford, Cambridge - the first under the full management of Comexposium - attracted 18,000 visitors. This is down 11% on the 20,000 who attended Cereals 2017 in Lincolnshire and 25% on the 24,000 drawn to Cereals 2016, the previous appearance in Cambridgeshire.  There were 362 exhibitors in 2018, down from the 450 in 2017 and 500 in 2016.

Comexposium, which organises the SIMA show in Paris alongside other agricultural shows around the world, says it consulted extensively with exhibitor and visitor advisory boards to make a number of changes and innovations for the 2018 Cereals

 “We have been overwhelmed with the positive feedback from exhibitors and visitors alike,” said event director Jon Day. “We had 18,000 attendees over the two days, and exhibitors were delighted with the quality of interest, with many reporting rapid sales and solid business leads. In fact, nearly 50% of exhibitors have already committed to attend in June 2019.”

 “We’ve had a better quality of visitors this year, the people I’ve spoken to have had genuine reasons for being here,” noted KWS-UK managing director Andrew Newby.  John Edwards of farm management software house Pear Agri, exhibiting for the first time, added: “We had a large number of very good enquiries and attending has proved valuable to the business.”

Cereals 2019 is scheduled for June 12th and 13th at Boothby Graffoe, Lincolnshire.

Posted on July 3, 2018 .

Is the UK agricultural supply chain facing a potential skills crisis? How does your business compare?

A people and skills shortage in the agricultural supply chain would have a significant impact on the ability of farming businesses to thrive in an increasing global and less subsidised economy.

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According to Stuart Goodinson, Managing Director of De Lacy Executive, farming is becoming increasingly technical with a desire to make greater use of new technologies so that efficiency improvements can be realised.  But this can only happen if the supply chain is sufficiently resourced with employees who are adequately skilled, experienced and available to work with farmers to embrace new techniques and approaches to move the industry forward.

“Everyone is aware of the difficulties in finding staff to work on farms.  A recent AHDB survey suggests only 4% of the population would consider working on a dairy farm, and there is considerable talk about the impact of Brexit on farm labour supply,” Mr Goodinson comments.  “But there are undercurrents of a parallel crisis in the supply chain - I am already picking up on a shortage of drivers and operational staff as concerns about Brexit build, but the greater fear is the ability of the industry to adequately support and service its customers.

“An effective labour supply chain has people with the skills, drive and enthusiasm to fill senior positions, alongside a flow of talented new entrants looking to work their way up, so ensuring progression.”

He says this is not a new situation, drawing on his experience in managing teams in the supply trade.  “For several years we have been facing a shortage of correctly skilled people.  When I was at DairyCo running the extension team, I was always looking for more suitably qualified extension officers to expand the existing team.

“At Lallemand, where I was country manager, challenges in finding more adequately qualified technical sales people meant we could not expand and open new territories as quickly as we would like.

“Since moving into recruitment it quickly became clear that I was not alone in experiencing these challenges.  The industry generally is struggling to find the people it needs, meaning vacancies remain unfilled for longer while new opportunities are hard to implement.  In addition, good technical people are increasingly being attracted to jobs outside the industry.  Together, these hold back both the supply company and the farmer customer.

“And we are not alone in the UK.  De Lacy is part of the larger Farms.com group and we are seeing similar issues in the US, Canada and other countries.”

Mr Goodinson suggests there are a number of issues contributing to this situation.  He believes that the industry is not seen as attractive to work in and that many do not see it as a future career choice.

“The new technologies making their way onto farms, such as drones and driverless tractors, mean it should be an exciting career.  Each year 13,000 people fight for places on the Dyson graduate programme, chasing just 200 jobs.  Surely some could be encouraged to look at agriculture?

“We also need to work with colleges to match graduate expectations with the reality.  I hear many new graduates saying they don’t want to go into sales, but want to be consultants.  The truth is there are not that many consulting jobs out there but there are fantastic openings for consultative sales people, as the role of sales evolves from chasing orders up farm drives to building enduring relationships with customers helping drive efficiency.”

He also highlights retention as an issues and questions what the industry must do to retain experienced staff both within companies and within the industry at all, as these will typically be the ones who drive business growth.

“It’s one thing to attract and train talent, but we also need to ensure they are retained and developed.”

Mr Goodinson believes the issue for the industry is understanding the scale and extent of the possible issues.  He says at present there is no data on the elements that together define the labour force and its dynamics.  Equally there is no way for businesses to benchmark themselves against the industry.

To address these issues, De Lacy in conjunction with ATN and Research Engine Ltd is establishing an annual supply chain labour survey with the aim of increasing visibility of the issues and giving meaningful benchmarks.

“The survey will also allow us to identify key areas, develop action plans and lobby Government and others with a foundation of fact rather than just anecdotal evidence.  By running an annual survey we can also monitor trends.

“We hope the survey will deliver valuable information and that as many companies as possible will contribute,” Mr Goodinson concludes.

Posted on July 3, 2018 .

3 Plots charity cycle challenge this summer

A group of major agricultural companies with a broadly eastern agronomy theme are supporting a four-day, 262-mile charity cycle ride taking place in July this year.

The AF Group, AICC, Bayer Crop Science, Corteva Agriscience (DowDuPont), FMC, NIAB, Rotam, and Syngenta UK are sponsoring The 3 Plots Challenge, which will see riders visit three NIAB field trial centres – Leadenham in South Lincolnshire; NIAB HQ in Cambridge; and Morley in Norfolk – between Thursday 5 July and Sunday 8 July.

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The 3 Plots Challenge is in aid of the Rob Stephenson Trust, a charity that helps young people in the UK and overseas participate in sport and change lives for the better. The Trust is named after NIAB agronomist Patrick Stephenson’s son Rob, who died in a road traffic accident in 2016. Rob’s brother Sam set up the Trust, which has already raised £125,000 in just two years.

The Challenge is open to individuals or relay teams of any size. Entrants can decide on the distance they wish to ride, from five miles to the entire circuit, which starts and ends in Lincolnshire. There will be a strong social theme to the occasion, including frequent refreshment stops, daily pub lunches and evening events.

Event organiser Andrew Watson, who is eastern regional agronomist and head of technical services at NIAB, said: “The 3 Plots Challenge started as a spark of an idea for a few keen NIAB staff to have fun and also raise money for the Rob Stephenson Trust. However, the response across UK agriculture to the event has been remarkable.

“Many corporate supporters and their staff have volunteered, setting aside commercial rivalry to come together around the ethos of the Trust – to enjoy sport and have fun. The farming grapevine is in overdrive, with individual and team enquiries coming in daily. We already have over 50 riders pre-registered even before the formal event launch and I’m expecting about 100 riders to get involved on the weekend rides alone. I am truly amazed how many individuals and teams plan to do the whole route.

“It shows the deep strength of the UK agriculture sector to come together so selflessly for the Stephenson family and the Trust. It has been a humbling experience.”

Individual riders and teams are asked to donate a set fee depending on how many miles they wish to cover. Riders can also use a personal sponsorship form, and anyone who wishes to support the event but who cannot take part, can donate at: https://uk.virginmoneygiving.com/Team/3PlotsChallenge.

For more details, visit www.robstephensontrust.com, or contact Andrew Watson on 07768 143730, email andrew.watson@niab.com.

Posted on May 2, 2018 .

More Countrywide job losses as first store sales near

The joint administrators of Countrywide Farmers, called in by the Countrywide board in early March,  say they are close to divesting  20 leasehold stores, but are finding a further 11 outlets a challenge to shift. They have also made further redundancies.

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David Pike, Mark Orton and Will Wright of KPMG Restructuring Capital have managed the 48 Countrywide Farmers outlets with their agent Hilco since their appointment on March 7th 2018.  “Given the strong trading performance to date, the majority of stores will be trading into May which has created an opportunity to seek further going concern sales where available,” they report.

So far, “credible offers, supported by strong under-bidders”, have been received for around 20 leasehold stores on a going concern basis, and the receiver hopes to conclude these as soon as possible.  There are also parties interested in alternative uses for some of the stores.

But 11 leasehold stores are proving a challenge to divest, as no acceptable or deliverable offer has been received. Therefore  KPMG is  inviting further going concern offers for the  Ashbourne; Launceston (B2B); Ludlow (B2B); Penzance (B2B); Liphook; Evesham; Twyford;  Witney; Gower; Tavistock and Chepstow stores.  Ideally, any transaction should be near to completion by end April or early May 2018. Contact gareth.shaw@kpmg.co.uk for more details.

The receiver intends to start marketing the 20 freehold store sites on a 'property only' basis from May this year. It says there has already been significant interest in these sites – further details from Mr Shaw as above or offers can be made through adam.heath@phdproperty.co.uk.

KPMG has made a further 26 redundancies from Countrywide’s head office at Evesham and its distribution centre at Defford this week – these follow the 32 jobs lost in the week before Easter.

Posted on May 2, 2018 .

Feed demand swells AB Agri interims

Interim figures from Associated British Foods (ABF) show growth for its Agriculture division, AB Agri, but a reverse for AB Sugar in the face of falling world sugar values.

AB Agri has reported an operating profit of £24 million on revenues of £615m in the six months ended March 3rd 2018, compared to £23m and £552m in the first half of 2017, respective increases of 4% and 11% as reported.

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Revenues were driven both by increased finished feed volumes and higher prices in line with rising feed material costs. Compound feed volumes – the group owns the ABN monogastric feed brand - were up through better profitability in pigmeat production and growth in the consumption of poultry products. The larger sugar beet crop harvested for 2017/18 meant there was more beet pulp co-product for Trident Feeds to market, increasing its contribution to the division’s figures.

The company’s premix and starter feed business, now grouped under the Speciality Nutrition banner, “performed strongly with increased sales volumes and new customers”. Feed additive and micro-ingredient specialist AB Vista saw higher sales volumes in Europe and North America. There was “good sales progress” from new business ventures, particularly the Agrokorn speciality protein business acquired in early 2016.

AB Agri also reports profitability in its feed operations in China.

The company’s new anaerobic digestion (AD) plant, located near its ABN feed mill at Sherburn-in Elmet feed mill in Yorkshire, Yorkshire is now on-stream and operating near its 60,000 tonnes of blended green and food waste capacity. It is part of the Amur brand covering sales of AD products and services launched in July 2016

Frontier Agriculture, the arable marketing business jointly owned by ABF Holdings and Cargill, reports that profitability was “held back by low volatility and weakening grain prices”, limiting both merchanting and trading opportunities in the period. The business recently unveiled sharp increases in profitability and sales for its full 2016/17 year.

AB Sugar, the global sugar operation, saw adjusted operating profit drop 27% to £90m on revenues down 13% to £938m. “Significantly lower” EU prices adversely affected its UK and Spanish businesses, partially offset by the much larger UK crop and ongoing performance improvement across the group.

The end of the EU sugar regime and its sales quotas and export constraints in September 2017 saw an increased EU beet area, which, coupled with exceptional yields, increases sugar production and has pressured prices down towards world values. The EU is currently a net exporter of sugar. The availability has also seen an increase in ethanol manufacture from sugar, and lower ethanol prices, a factor in the closure of the group’s Vivergo wheat to bioethanol plant on Humberside in December.  Vivergo restarted this month following the extended maintenance shutdown which allowed plant improvement work to take place.

Germains, the King’s Lynn-based specialist in seed treatment, coatings and enhancement, grew profitability and sales through new product development.   The group is to support strong growth in the US horticulture market with investment in expanding the Germains facility at Gilroy in California.

Posted on May 2, 2018 .

ADM Arkady replaces Cefetra at KGV Glasgow

Following Cefetra’s decision not to renew its contract to use the King George Vth (KGV) agribulk terminal at Glasgow, owner Peel Ports has reached an agreement with ADM Arkady to use the facility.

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Cefetra and Peel Ports say their mutual agreement not to renew their contracts at KGV in Glasgow followed a comprehensive review and “was not taken lightly”. Accordingly, ADM Arkady has now signed a long-term contract with Peel Ports Group. Arkady says it will partner with Peel Ports to develop the Glasgow port, through expanding the site and enhancing its facilities to handle animal feed. At the same time, it will “significantly expand its northern hub operations in Liverpool”.

Arkady adds that the move will enable it to consolidate its regional imports and service its North of England and Scotland markets better, with up to 1 million tonnes of animal feed ingredients imported through both terminals each year.

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Access to the port and its warehouses will be unchanged over the next few weeks until the contracts expire, although Cefetra has commenced its phased exit to another location. Peel Ports says no interruption in supplies is envisaged over this period, although it has plans to activate third party contingency stocks should any issues arise. Cefetra is due to issue a statement later this month.

“These two new deals further strengthen the relationship between Peel Ports Group and ADM Arkady,” says ADM Arkady managing director Graham Atkinson. “Combining Peel Ports Group’s extensive port network and expertise in handling and warehousing together with ADM’s global supply chain makes an unbeatable partnership that will benefit UK agriculture in the coming years. With the scale and efficiencies that these new port arrangements provide we are confident that we can bring the highest quality feedstuff products into the UK at prices that deliver best value to our customers.”

Mark Whitworth, chief executive of Peel Ports Group, adds: “Our long-term agreement with ADM Arkady is a welcome boost to operations in Glasgow and Liverpool. We are in the process of finalising plans for the storage and distribution facilities to accommodate ADM Arkady’s business model.

“With strategic port locations in the north of England and Scotland we are in a unique position to work with ADM Arkady as it continues its growth in the UK, helping create an efficient, more cost-effective supply chain for its products and customers.”

Posted on May 2, 2018 .

From Grand Slam to Devenish

Animal nutrition company Devenish, based in Belfast, is working with Grand Slam winning Irish rugby team captain Rory Best in an initiative to raise awareness of the link between farming, animal nutrition and human health.

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The Ireland and Ulster rugby captain farms cattle and crops with his father at Poyntzpass in County Down. He will be working with Devenish to engage with farmer customers, staff and students to explain how innovation at farm level can lead to health benefits for the consumer. He will also deliver a number of staff workshops and events with the Devenish team to exploring the theme of leadership.

“Devenish innovation is breaking new ground in the area of animal nutrition on a global scale,” comments Mr Best. “Maintaining optimum animal health is not only vital to the success of a farming business, but has the potential to positively impact upon the health of the human population and the environment. Good nutrition is the cornerstone of a healthy lifestyle and that is also true in animals.

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“I'm also keen to share my experiences of leading a team with Devenish and exchanging learnings with a leading global company."

Devenish group chief executive Richard Kennedy adds: “Rory's knowledge and experience of high performance sport, farming, nutrition and leadership make him an excellent partner for Devenish.

"The farmer has a key role to play in delivering sustainable and nutritious food that promotes good human health so supporting innovation at farm level is key. Working with Rory will give us the opportunity to learn from his work so we can tailor our feed solutions accordingly and at the same time promote the importance of sustainable farming.”

Posted on May 2, 2018 .

Comment: Make your voice heard in Green Brexit consultation

Defra’s consultation on Michael Gove’s vision for a post-Brexit agricultural policy in the UK closes in just over a week – Sunday May 8th at 11.45 pm.

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Health and Harmony – the future for food, farming and the environment in a Green Brexit could set the shape of UK agriculture for decades to come, in much the same way as the 1947 Agriculture Act and the 1973 accession to the EU and its Common Agricultural Policy influenced the subsequent years.

Already, a Defra adviser has warned that the overwhelming bulk of responses received so far are from environmental groups making a strong case for improving biodiversity, natural capital and open access to the countryside. Many of these are coherently argued and well researched.

But there is a real danger that the vital importance of food production in generating rural employment, wealth and viability - not to mention the raw materials for the £110 billion food and drink industry and in helping reduce the UK trade deficit - will be outweighed.

Food production is at the heart of a healthy rural economy, supporting growers, their suppliers and the food chain, as well wider rural businesses and the environment.  As Princess Anne told a recent Oxford Farming Conference:  “You can only be green if you are not in the red” – only a profitable agriculture has the resources to invest in protecting and conserving the environment.

While the consultation document can be confusing – it starts with questions on the CAP, and often imposes an arbitrary top three choice on a greater number of important factors – it is vital that the whole agricultural industry, including its suppliers, ensure their views are represented and count.

The online consultation document and supporting information can be found at https://www.gov.uk/government/consultations/the-future-for-food-farming-and-the-environment. Alternatively, views can be submitted by email: agricultureconsultation@defra.gsi.gov.uk or by letter to:  Agriculture Consultation Team, 1b - Future Farming Directorate, Defra, Nobel House, 17 Smith Square, London SW1P 3JR.

Do it today!

Posted on April 27, 2018 .

Appeal Court backs ownership of R&D trials data

Court backs ownership of R&D trials data

A recent Appeal Court decision should benefit agrochemical companies carrying out R&D, as it confirms that the costs they incur in generating specific data to support the authorisation and re-authorisation of their products means the data belongs to them and is protected. 

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The implication of the decision is that companies now have greater protection in relation to commercially sensitive field monitoring data, which would otherwise allow competitors to bring their products to market without first having to conduct their own such studies. 

The case was brought by Co Durham-based distributor Chiltern Farm Chemicals against the Health and Safety Executive, which oversees the Chemicals Regulation Division (CRD). It related to the re-authorisation of Chiltern's 1.5% TR3799 metaldehyde slug pellet brand, specifically the data collected in field monitoring studies involving the tagging of birds.  Such ‘vertebrate studies’ are exempted from CRD data protection and so could be used for the benefit of other companies without the data owner's consent.

 The Court of Appeal was asked to determine what constitutes a ‘vertebrate study’ under the relevant EU legislation and unanimously decided Chiltern's study was not a vertebrate study.

“This case is important to us and our business,” states Chiltern director Philip Tavener. “These studies are time consuming and costly, and the distinction between what constitutes a vertebrate study or not has considerable commercial implications.  

“The data we generate are commercially sensitive and it is right and fair that in non-vertebrate studies we are allowed to properly negotiate our competitors' access to those data.”

Simon Fitzpatrick, a partner in the Commercial Litigation team at Boodle Hatfield, the London law firm that led the case, adds: “This is a complicated and technical area of law relating to what is and what isn’t a vertebrate study and subsequently what happens to data submitted in support of authorisation of agrochemicals.  

“Quite rightly, the Health and Safety Executive’s (HSE) Chemicals Regulation Division (CRD) wishes to minimise the impact on wildlife of all studies and it does this by requiring agrochemical companies to share data from certain studies involving vertebrates.  The regulations also grant businesses protection to commercially sensitive data, and this case has for the first time provided valuable clarification of where the line should be drawn.”

Boodle Hatfield says the case is an important decision, as it is the first time the English courts have considered the definition of a vertebrate study.  Its remit will extend across the whole range of plant protection products and monitoring studies in the context of re-authorisation applications to secure the data protection rights of data owners in these studies.

Case facts provided by Boodle Hatfield

The CRD is responsible for regulating plant protection products in the UK.  Pesticide producers are required to apply to the CRD for authorisation prior to marketing their products in the UK.  Once authorised, products are periodically required to be reviewed and re-authorised.

Chiltern, a producer of slug pellets, applied for the re-authorisation of its products in the UK.  The extensive data submitted by Chiltern in support of its applications included a bird field monitoring study, involving the standard application of Chiltern's slug pellets to agricultural sites followed by the monitoring of radio tagged birds which happened to be present at those sites.  No effects on any birds were observed.

Studies submitted to the CRD are generally afforded data protection and cannot be used for the benefit of other companies without the data owner's consent, subject to specific exceptions.  One such exception is vertebrate studies, where the regulations seek to avoid duplication of studies that may cause harm to vertebrates.  Tagging for identification purposes is excluded from the definition of a vertebrate study as is "recognised agricultural practice".

Vertebrate studies can be used by the CRD for other applicants if they have requested access from the data owner but have not received the data owner's consent.  The data owner then has a claim for “a fair share of the costs” from the applicant.                                                 

The CRD considered that Chiltern's bird field monitoring study was a vertebrate study and that it could be used for the benefit of other applicants without Chiltern's consent.  CRD's reasoning for the decision was, they alleged, that the study's overall purpose was to determine if metaldehyde (the active substance in Chiltern's slug pellets) kills birds or results in clinical or behavioural effects.

Chiltern brought proceedings for judicial review of this decision.  It was common ground between the parties that the radio tagging of the birds did not cause the study to be a vertebrate study.

Court of Appeal's decision

The Court of Appeal unanimously held that Chiltern's study was not a vertebrate study.

In coming to its conclusion, the Court considered that the study was excluded from the definition because of the express exclusion for recognised agricultural practice.  It was common ground between the parties that the use to which Chiltern's slug pellets were put in the study was recognised agricultural practice.  The pellets had been applied by farmers to agricultural fields at the authorised application rate.

The Court further considered that it would be curious if the monitoring of an authorised plant protection product used in accordance with its authorised directions was prohibited if similar monitoring had been performed before, or if it required a licence to be performed (vertebrate studies are required to be licensed prior to the work being carried out).

Finally, the Court concluded that the study did not increase the risk to birds over and above that inherent in the use of the product during the course of authorised and recognised agricultural practice, given the modest size of the experimental area compared with the area over which authorised metaldehyde products were used in farming.  Therefore, the interference with Chiltern's property and confidentiality rights in the study would have been disproportionate.

Comment

This case is an important decision, being the first time the English courts have considered the definition of a vertebrate study.  Its remit will extend across the whole range of plant protection products and monitoring studies in the context of re-authorisation applications to secure the data protection rights of data owners in these studies.

It was considered and accepted that if the study had involved monitoring the effects of a new unauthorised product or the new use of an existing product, that would have been experimental and within the definition of a vertebrate study.  A trials permit from CRD would have been required for such a study in any event.

The decision clarifies that monitoring studies, where the form of monitoring does not itself cross the threshold for a vertebrate study, may be duplicated.  This can only increase the protection of vertebrate wildlife, with numerous studies able to be carried out.

 

Posted on March 8, 2018 .

Chiltern Farm Chemicals vs the Health and Safety Executive

 

Neutral Citation Number: [2018] EWCA Civ 271
 

Case No: C1/2017/3219

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN’S BENCH DIVISION

HIS HONOUR JUDGE SAFFMAN SITTING AS A DEPUTY HIGH COURT JUDGE

[2017] EWHC 2491 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

 

Date: 27/02/18

Before :

 

THE SENIOR PRESIDENT OF TRIBUNALS

(LORD JUSTICE RYDER)

 

LORD JUSTICE HICKINBOTTOM

and

LORD JUSTICE LEGGATT

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Between :

 

 

THE QUEEN ON THE APPLICATION OF

CHILTERN FARM CHEMICALS LIMITED

 

 

Appellant

 

- and -

 

 

 

THE HEALTH AND SAFETY EXECUTIVE

 

 

 

Respondent

 

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

 

Tim Ward QC and Robert Palmer (instructed by Boodle Hatfield LLP)

for the Appellant

Jonathan Lewis (instructed by Government Legal Department) for the Respondent

 

Hearing date: 6 February 2018

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Approved Judgment

 

 

 

 

Lord Justice Hickinbottom:

 

Introduction

1.                  The Respondent, through its Chemicals Regulation Division (“the CRD”), has responsibility for regulating “plant protection products” including molluscicides, and is the competent authority for the United Kingdom under Regulation (EC) No 1107/2009 of the European Parliament and Council concerning the placing of plant protection products on the market (“the Regulation”).   

2.                  The Appellant (“Chiltern”) has produced and marketed molluscicides in the form of slug pellets for commercial and domestic use for many years, having been authorised to do so under the predecessors to the Regulation.  Under the Regulation, which has more stringent safety requirements, Chiltern was required to apply to the CRD for re-authorisation of those products.  As part of its dossier in support of that application, it submitted a bird field monitoring study, which it considered provided data necessary to obtain re-authorisation (“the Prosser Study”).  In the study, its slug pellets were applied to several fields in different locations in accordance with its authorisation, and in a standard manner, and adverse effects on tagged birds were noted.

3.                  Generally, the Regulation acknowledges that data obtained and thus owned by applicants as a result of studies, which often involve heavy expenditure, should be protected.  However, it encourages applicants to cooperate and share tests and study reports; and, in respect of vertebrate animals, where agreement over such cooperation cannot be achieved, article 62 allows the competent authority to use test and study reports for the purposes of another applicant’s application, in return for that other applicant paying a fair share of the costs of the tests or study.  Although the data are not shared, the benefit of the data is.  These are known as the data sharing provisions. 

4.                  On 29 January 2016, the CRD notified Chiltern that it considered the Prosser Study to be a vertebrate study that was subject to the data sharing provisions.

5.                  Chiltern, for which the decision had potentially substantial commercial consequences, commenced judicial review proceedings challenging that determination.  Permission to proceed was granted; but following the substantive hearing, on 25 October 2017, His Honour Judge Saffman sitting as a Deputy High Court Judge refused the claim. 

6.                  On 22 December 2017, Jackson LJ granted permission to appeal.  On 12 January 2018, having been informed that several other applications would be considered by the end of February 2018 in respect of which the CRD will or may use the Prosser Study data thereby making the appeal empty, I ordered the appeal be expedited. 

7.                  Before us, Tim Ward QC and Robert Palmer appeared for the Appellant, and Jonathan Lewis for the Respondent.  At the outset, I thank each of them for his contribution to the debate.

The Law

8.                  The marketing of molluscicides has been regulated in the United Kingdom since the Control of Pesticides Regulations 1986 (SI 1986 No 1510); and, since 1991, by provisions emanating from Europe.  EC Council Directive No 91/414/EEC (“the Directive”) and, since 14 June 2011, the Regulation have had the aim of harmonising the arrangements for the marketing authorisation of plant protection products within the EU and of ensuring they are safe to use.  Recital (8) of the Regulation sets out its purpose “to ensure a high level of protection of both human and animal health and the environment and at the same time to safeguard the competitiveness of Community agriculture”.  Recital (10) states that substances used in such products “are not expected to have any harmful effect on human or animal health…”, with recital (24) saying that, prior to granting authorisation, it should be demonstrated that plant protection products “do not have any harmful effect on human or animal health…”.  Therefore, whilst recital (39) stresses the importance of generally protecting the property rights in test and study reports submitted by an applicant for the purposes of the authorisation of a product – so as to stimulate research – recital (40) requires rules to be laid down to avoid duplication of tests and studies on vertebrate animals.

9.                  Chapter 5 of the Regulation deals with “Data protection and data sharing”.  Reflecting important property and confidentiality rights, article 59 provides that, if they are necessary for authorisation purposes and are certified as compliant with good laboratory or experimental practice, test and study reports concerning a plant protection product and any active ingredients shall have the benefit of data protection for ten years.  That is subject to a number of exceptions, but the only relevant exception for the purposes of this appeal is that found in article 62. 

10.              Article 60 requires Member States to keep a list of test and study reports submitted and necessary for any authorisation process; and article 61 requires that list to be provided upon request to anyone intending to seek an authorisation of a plant protection product.  Article 61(3) requires the relevant authorisation holder and prospective applicant to take all reasonable steps to share relevant data; but without a mechanism to require them to do so.

11.              However, under article 62, where those parties fail to reach an agreement in respect of test and study reports on vertebrate animals, the competent authority can override the lack of consent, and, although it does not allow the data to be disclosed to the new applicant, it allows the authority to use the reports when considering a new application.  Where it does so, article 62(6) entitles the authorisation holder, whose data they are, to claim from the new applicant “a fair share of the costs incurred by him” in obtaining the data (which, of course, may fall short of the value that the data may have to the new applicant).  In the meantime, article 62(2) proscribes Member States from accepting duplicate vertebrate tests and studies. 

12.              These are the only provisions that allow the non-consensual use of an authorisation holder’s data for the purposes of an application by another person; and they only apply to test and study reports on vertebrates.  “Test and study reports on vertebrate animals” is a phrase not defined in the Regulation.  However, recital (40) refers to the restriction of tests on vertebrate animals being “in accordance with Council Directive 86/609/EEC of 24 November 1986 on the approximation of laws, regulations and administrative provisions of the Member States regarding the protection of animals used for experimental and other scientific purposes” (“the 1986 Directive”).  This is confirmed in the CRD publication “The Applicant Guide: The Protection of Data” (“the CRD Guidance to Applicants”).  Furthermore, each of two European Commission Health and Consumer Protection Directorate guidance documents, European Commission Guidance Document on Data Protection (SANCO/12576/2012 rev 1.1) and European Commission Questions and Answers on the Regulation (SANCO/12415/2013 rev 6), state that:

“The terms ‘tests and studies involving vertebrate animals’ should be interpreted as experiments within the scope of [the 1986 Directive]…”.

It is common ground before us that “test and study reports on vertebrate animals” for the purposes of the Regulation has the same meaning as “experiments” under the 1986 Directive. 

13.              So far as material to this appeal, article 2 of the 1986 Directive defines “experiment” as:

“… [A]ny use of an animal for experimental or other scientific purposes which may cause it pain, suffering, distress or lasting harm…  [A]n experiment starts when an animal is first prepared for use and ends when no further observations are to be made for that experiment….  Non-experimental, agricultural or clinical veterinary practices are excluded.”

14.              I pause to note that the 1986 Directive has been superseded by EU Directive 2010/63/EU on the protection of animals used for scientific purposes; but (i) the 1986 Directive regime applies in this case and (ii) it is common ground that there would be no material difference in the outcome under the 2010 Directive in any event.  I need not consider the 2010 Directive further.

15.              The 1986 Directive was implemented in the United Kingdom by the Animals (Scientific Procedures) Act 1986 (“the 1986 Act”); and it is also common ground that sections 1 and 2 of that Act properly implemented the 1986 Directive by defining “a regulatory procedure” in terms that are directly equivalent to “experiment” in the Directive (and, thus, to “test and studies on vertebrate animals” in the Regulation). 

16.              Section 1(1) of the 1986 Act defines “protected animal” as:

“Any living vertebrate other than man.”

17.              Section 2, so far as material to this appeal, provides:

“(1)   Subject to the provision of this section, “a regulated procedure” for the purposes of this Act means any experimental or other scientific procedure applied to a protected animal which may have the effect of causing that animal pain, suffering, distress or lasting harm.

(5)     The ringing, tagging or marking of an animal, or the application of any other humane procedure for the sole purpose of enabling an animal to be identified, is not a regulated procedure if it causes only momentary pain or distress and no lasting harm.

(8)     In this section references to a scientific procedure do not include references to any recognised veterinary, agricultural or animal husbandry practice.”

18.              Two points are worthy of note at this stage.

i)                    It is clear from section 2(1) that “experimental procedure” is simply a subset of “scientific procedure”.

ii)                  The exception incorporated into article 2 of the 1986 Directive, in respect of “non-experimental, agricultural or clinical veterinary practices” is not easy to construe on its face, because (a) the comma suggests that “non-experimental” does not govern “agricultural practice” and “animal husbandry practice”, and (b) it otherwise purports to define an exception to “experiment” in terms of itself, i.e. “non-experimental”.  However, before us, it is common ground that section 2(8) of the 1986 Act properly implemented the exception, and I can therefore focus exclusively on section 2(8) without referring back to the 1986 Directive.

19.              Section 3 of the 1986 Act prohibits any person from applying a regulated procedure unless linked personal, project and premises licences are in place.  Contravention of section 3 is a criminal offence, with a maximum sentence on conviction of two years’ imprisonment (section 22(1)).

The Risk Assessment Methodology

20.              The relevant European methodology for the assessment of the risk of morbidity effect of plant protection products on vertebrates is set out in The European Food Safety Authority Guidance on the Risk Assessment for Birds and Mammals (EFSA Journal 2009; 7(12); 1438).  It is helpfully, and uncontroversially, set out in the statement of Peter John Chapman dated 14 July 2017, from paragraph 10 onwards.  Mr Chapman is the Director of Regulatory Affairs at JSC International Limited, consultants used by Chiltern. 

21.              The approach is two-tiered.  The first step is a paper-based screening assessment, comprising a calculation based upon various worst-case assumptions, which are unrealistic in relation to normal conditions of use, e.g. that birds spend all their foraging time eating metaldehyde-containing slug pellets and they eat nothing else.  If that calculation shows there is no risk, then no further steps are undertaken.  However, if it shows a potential risk, then, if the calculation cannot be refined to exclude the risk, “higher tier data” are required from (e.g.) studies designed to assess the effects of the product on birds and mammals under field conditions.  The purpose of such data is to show that, under particular conditions of use, the product is acceptably safe.   

The Factual Background

22.              The factual background is comprehensively set out in the judgment of Judge Saffman.  I can be relatively brief.

23.              Chiltern was established in 1980, and since then it has manufactured slug pellets with the active substance metaldehyde in a cereal-based formulation.  The pellets are spread over the surface of the soil.  When ingested by slugs, they are fatal.  However, the toxic properties of metaldehyde mean that, in certain circumstances, the pellets can also be harmful and even fatal to birds and small animals, to which they are a potential food source.

24.              Under the Directive, authorisation was required before placing a plant protection product on the market.  There were two stages to the process.  First, active substances (such as metaldehyde) had to be approved.  Approved substances were added to Annex 1 of the Directive which triggered a requirement for any plant protection products containing that substance already on the market to be re-authorised.  During this process, plant protection products containing those ingredients could continue to be marketed. 

25.              The review of metaldehyde started in 2003.  It was concluded, and metaldehyde included in Annex 1, on 1 June 2011.  However, as I have indicated, the Regulation came into effect on 14 June 2011, with higher safety standards particularly in relation to minimising harm to vertebrate animals.  Upon the advent of the Regulation, Chiltern’s products containing metaldehyde had to be re-authorised on the basis of the new standards, including those within article 62 of the Regulation.

26.              Although the products had been marketed for some years, Chiltern was aware that, if its applications were to be successful, it would need further data in respect of their safety in relation to small wildlife.  The first-tier safety assessment did not rule out the possibility of the products posing a risk to birds and mammals.  Higher tier data were therefore required.  Chiltern commissioned six ecotoxicology studies, including two field monitoring studies, one on mammals and one on birds.  The collection of the data for the purposes of the applications for re-authorisation cost Chiltern about £3m, the Prosser Study alone costing £174,100.

27.              The two monitoring studies were commissioned by Chiltern from the Centre for Chemical Safety and Stewardship within the Food and Environmental Research Agency (“FERA”), then an executive agency of the Department for Environment, Food and Rural Affairs.  When the studies were initiated, FERA sought and obtained the necessary licences for the mammal study (which involved tagging by punching a hole in the ear of the subject animals), but not the bird study.  The director for the bird study was Dr Phil Prosser, hence “the Prosser Study”. 

28.              The Prosser Study was higher tier.  It involved the tagging of wild birds which happened to be present at the five sites that were the subject of the study, prior to seed drilling and a single slug pellet application.  That application was at the recommended rate employing standard equipment normally used for the purpose; and then observation of the birds over a fixed period.  It was the express aim of the study to adopt “normal agricultural practice in slug pellet application”; and, in Dr Prosser’s opinion, that aim was achieved (see paragraph 3.3 of the Prosser Study).  Before Judge Saffman, it was common ground that the slug pellets were distributed and otherwise used both as authorised at the time and in accordance with “standard”, “normal” and (for the purposes of the 1986 Act) “recognised” agricultural practice.  The Prosser Study was completed in April 2014.  It was certified as being compliant with the relevant national and European standards of good laboratory practice.

29.              Five other manufacturers of plant protection products containing metaldehyde proposed to apply for the re-authorisation of their products, and they asked the CRD for a list of vertebrate studies already submitted in other applications for metaldehyde-containing products.  They were provided with a list, which included the Prosser Study. 

30.              On 30 October 2015, Chiltern’s solicitors wrote to the CRD asking whether they considered the Prosser Study fell within or outside the data sharing provisions; and, if within, on what basis.  The CRD responded on 29 January 2016, indicating that they did consider the Prosser Study was subject to the data sharing provisions, giving two reasons. 

31.              First, it said that the study harmed the birds because “it involves the handling trapping and radio tagging of wild birds unfamiliar with that process”.  However, before the application was heard by Judge Saffman, the CRD had accepted that the tagging etc involved in this case did not trigger the data sharing provisions, because it fell within section 2(5) of the 1986 Act (see paragraph 17 above).  It has not since been suggested that this reason had any force.

32.              The second reason was as follows:

“… [T]he overall purpose of the study was to determine if metaldehyde kills birds or results in clinical/behavioural effects. The objective has the potential to cause overall suffering and ultimate harm. The symptoms of metaldehyde poisoning in domesticated and wild mammals includes inability to stand, blindness, change in respiratory rate, excessive sweating and salivation, sudden death and seizures. [The CRD] considers that the minimum threshold is also reached in relation to this study which we therefore deem to be in scope of the vertebrate data sharing arrangements as outlined in [the Regulation]”.

Before Judge Saffman, and now before this court, that was and is the only reason relied upon by the CRD for the data sharing provisions applying to data derived from the Prosser Study.

The Claim

33.              The Prosser Study recognised that Chiltern’s products posed a risk to birds by consuming the slug pellets directly or by consuming slugs contaminated with metaldehyde from the pellets.  Before Judge Saffman, as I have indicated, the CRD accepted that the study involved the use of Chiltern’s slug pellets in accordance with “recognised agricultural practice”; but, it was contended, it became a “regulated procedure”, subject to the data sharing provisions, because of the subjective intention or motive underlying the use.  It was submitted that there is a material difference between, on the one hand, merely obtaining feedback from farmers who, in the ordinary course of their farming, have used the slug pellets in the field in accordance with the product’s authorisation and recognised agricultural practice, and then simply observed what happens; and applying slug pellets in exactly the same way, but for experimental or other scientific purposes.   In the Prosser Study, the purpose of applying the pellets was experimental, namely to measure the risk of harm to birds.  The study therefore fell within the definition of “regulated procedure” for the purposes of the 1986 Act.

34.              It was submitted by Mr Ward, appearing for Chiltern before Judge Saffman as he did before us, that neither the product nor its manner of use in the Prosser Study was experimental.  He accepted that, had the Prosser Study been conducted with a new, unauthorised product, then it would have been a recognised procedure under the 1986 Act.  But the product was authorised, it had been applied to the relevant sites in accordance with standard agricultural practice, and is likely to have been applied in that way at those sites in any event.  Recognised agricultural practice did not become experimental simply because there was subsequent monitoring of the bird population. 

35.              Judge Saffman accepted that the data sharing provisions of article 62 of the Regulation were an exception to, and a derogation from, the general principle of data protection in respect of studies; so that article 62 had to be construed narrowly.  However, for the purposes of the scope of “recognised procedure” in the 1986 Act, he did not consider that the use of an authorised product could be distinguished from the use of a new product.  He accepted, as was common ground, that the pellets in the study were applied as in recognised agricultural practice; but the unambiguous motive behind the application here (i.e. to obtain data about the risk posed to birds, under the auspices of a scientist) meant that “it was not in pursuance of standard agricultural practice” (see [113]).  He concluded, at [119] of his judgment, that he did not see how the Prosser Study was “anything other than a scientific study of the birds”, being “a study of the effect (if any) of the pellets on birds conducted under the supervision of a scientist, which was monitored by a scientist and which contains a Statement of Compliance with Good Laboratory Practice”.  In short, he preferred the submissions made on behalf of the CRD.         

Discussion

36.              As will by now be apparent, this appeal turns upon a narrow point of statutory construction concerning the scope of “regulated procedure” for the purposes of section 2 of the 1986 Act, and particularly whether the use to which the plant protection product was put in the Prosser Study fell within that scope.

37.              The primary definition of “regulated procedure” is found in section 2(1), i.e. “any experimental or other scientific procedure applied to a protected animal which may have the effect of causing that animal pain, suffering, distress or lasting harm”.  In my view, the use to which the product was put in the Prosser Study clearly fell within that definition.  As Mr Lewis submitted, “experiment” includes a scientific procedure undertaken to make a discovery, test a hypothesis or demonstrate a known fact.  The premise upon which the Prosser Study was conducted was that “there may be risks to birds both from directly consuming slug pellets, and from consuming contaminated slugs and other invertebrates”, i.e. risks identified by a paper calculation as a first-tier assessment.  The study was higher tier, designed to provide data that would assist in the assessment of that risk.  Chiltern no doubt considered that, if used in accordance with its authorisation and standard agricultural practice, the product will not harm birds; but, at the very least, the study was designed to test that hypothesis.  In determining whether this use to which the product was put in the Prosser Study fell within that primary definition, purpose was therefore relevant.

38.              However, this definition of “regulated procedure” in section 2(1) is expressly “subject to the provision of this section”, including section 2(8).  Section 2(8) provides that “references to scientific procedure do not include references to any recognised… agricultural… practice”.  Mr Ward for Chiltern submitted that that exclusion from the primary definition does not, expressly or impliedly, incorporate any element of intention or purpose.  I agree.  Where, as here, the use of the product was a “recognised agricultural practice”, it falls within the exception.  An enquiry as to whether the use was part of a scientific procedure, rather than in “the ordinary course of farming”, was neither required nor warranted.  Judge Saffman correctly proceeded on the agreed basis that the use of the product was in accordance with recognised agricultural practice; but, in my respectful view, he then erred in proceeding to consider the purpose or motive for that use, and, having found that the purpose or motive was in pursuance of a scientific procedure, in concluding that it was a recognised procedure attracting the data sharing provisions of article 62.

39.              In coming to that conclusion, I have particularly taken into account the following.

40.              It was common ground before Judge Saffman that the use to which the slug pellets was put in the Prosser Study was a recognised agricultural practice.  Before us, Mr Lewis fleetingly sought to suggest that, on the facts of this case, it was not; but that was a point not taken before Judge Saffman and, rightly, not ultimately pursued by Mr Lewis before us.  The appeal therefore proceeded on the basis of the same consensus as there was below.

41.              Judge Saffman concluded that the article 62 data sharing provisions are a derogation from the general rule of data protection in article 59, and therefore the article 62 should be interpreted strictly.  That conclusion is not the subject of any challenge before this court.  However, I am unconvinced that it is either helpful or necessary to rely on the principle of derogation in construing article 62.  It is unnecessary because, in my view, the true construction of article 62 is unambiguous. 

42.              The construction suggested by Mr Lewis, and adopted by Judge Saffman, would define “scientific procedure” in terms that exclude any “recognised agricultural practice” but except from that exclusion any scientific procedure.  It would thus define an exception to “scientific purpose” in terms of itself, which would rob section 2(8) of all sensible content.  I am unconvinced that that is a legitimate construction, even though, on one view, it is arguable that the 1986 Directive defines “experiment” in terms of itself (see paragraph 18(ii) above). 

43.              On the basis of the construction Mr Lewis suggests, section 2(8) would, at best, be merely confirmation for the avoidance of doubt that “scientific procedure” in section 2(1) excludes recognised agricultural etc practices that are not part of any scientific procedure.  I am unconvinced that section 2(8) was intended to have no substantive content: indeed, it was clearly intended to have some purpose.  Its purpose was to exclude any recognised use of the product that fell within agricultural etc practice from the definition of “regulated procedure”, irrespective of the purpose or motive of that use.       

44.              It seems to me that that construction is both unambiguous, and entirely consistent with the aims of the Regulation.  It is true that the Regulation enhanced the protection of vertebrates, with the recited aim of ensuring that no marketed plant protection product has harmful effects on animal health (see recitals (10) and (24), referred to in paragraph 8 above).  However, all plant protection products pose some risk.  Metaldehyde-containing products are required to be toxic to slugs and, dependent upon distribution/dose and other circumstances of use, pose some risk to vertebrate animals, including birds.  The balance between the benefits of plant protection products and the risk to vertebrates is set out in article 62 read with the 1986 Directive as implemented in the 1986 Act.  It is that which defines the margin of safety. 

45.              The concept of “recognised agricultural practice” within this part of the scheme is driven by the directions for use as authorised, the appropriate regulator assessing whether that risk is acceptable.  Where a plant protection product is used in accordance with recognised agricultural practice, it is being used in circumstances in which the risk is currently considered to be acceptable.  

46.              It would be curious if monitoring an authorised plant protection product used in accordance with the authorised directions and usual, recognised agricultural practice either was prohibited (insofar as similar monitoring had been done before), or alternatively required a licence to perform.  There would appear to be no justification for discouraging such practice.  In my view, such monitoring is allowed without any such requirement.

47.              Mr Lewis submitted that, once a specific product has been assessed as “safe” and consequently authorised, absent a change in standards, it is unlikely to benefit from further studies (paragraph 42 of his skeleton argument).  However, I do not agree.  Even where, on available material, a product has been assessed as safe when used in accordance with certain directions, when it is marketed it will be the subject of much greater usage in a much wider range of circumstances than can have occurred prior to authorisation.  Problems that were not apparent previously may therefore exhibit themselves after marketing.  Anecdotal reports may be inadequate to identify such problems.  A responsible authorised person may therefore take the view that monitoring in accordance with authorised use will be beneficial.  Where safety standards are raised, data from monitoring a product when it was subject to lower standards may still be helpful.  For example, if a standard of safety is raised from X to Y, it will be helpful if monitoring against standard X shows that the product meets standard Y in any event.  Simply because re-authorisation of a product will be assessed by higher safety standards than currently apply, does not change the scope of current recognised agricultural practice on which monitoring can be conducted.  The results of the re-authorisation process may, of course, change recognised agricultural practice; but that is a different matter.

48.              I do not accept Mr Lewis’s submission that, by using a plant protection product in accordance with recognised agricultural procedure but for the purpose of scientific monitoring, the risk to vertebrates is materially increased, because any risk is not counterbalanced by any benefit in terms of plant protection.  Even if the application of the product to the fields that were the subject of the study had not been as part of active farming, the increase in risk was insignificant, given the very modest size of the experimental area monitored in the Prosser Study compared with the area spread with authorised metaldehyde-containing products as part of farming (over 700,000 hectares).  But, in any event, the sites used in the Prosser Study were particularly selected as being due to be drilled with rape seed or cereal (see paragraph 2.6 of the Prosser Study); and, as part of the study protocol, the sites were in fact seed drilled prior to pellet application and monitoring.  For obvious reasons, a field without being seed drilled would have been less attractive to birds, and may have thus biased the results.  Mr Lewis’s criticism therefore has no force on the facts of this case. 

49.              The Prosser Study did not increase the risk to birds over and above that inherent in the use of the product during the course of authorised and recognised agricultural practice.  That risk has been assessed as being acceptable; and is not made unacceptable by the prospect of a raising of that standard by the new provisions of the Regulation.  Therefore, the interference with Chiltern’s property and confidentiality rights in the Prosser Study data inherent in any data sharing would necessarily have been disproportionate, and indeed unreasonable in the sense of legally perverse. 

50.              The various guidance that has been issued in relation to the Regulation is not of any real assistance.  SANCO/12576/2012 rev 1.1 (which, with the other relevant guidance documents, is referred to in paragraph 12 above) unhelpfully says that “in the case of monitoring of birds and mammals in the fields, it is not very clear whether these constitute ‘tests and studies involving vertebrate animals’”.  SANCO/12415/2013 rev 6 makes no reference to the issue.  The CRD Guidance to Applicants states:

“Recital 40 of [the Regulation] refers to [the 1986 Directive], which in turn defines the type of experiments that are covered by the vertebrate data sharing arrangements.  On this basis, CRD consider that field monitoring data (e.g. such as that conducted for higher tier bird and mammal assessments) are not within the scope of the vertebrate data sharing arrangements.” (emphasis in the original).

Mr Lewis submitted that the reference to field monitoring studies was directed at situations in which animals are not exposed to potentially unsafe products but are simply monitored in their normal habitat to observe their everyday behaviour; but that cannot be so, because the reference to higher tier assessments presupposes exposure to the relevant product.  Nevertheless, I accept that the CRD view of the scope of section 2 of the 1986 Act is not relevant to the true construction of the provision, which is a matter for the objective determination of the court; although it comes as some comfort that the CRD has considered the construction I favour to be correct, as did FERA (then an executive agency of the Department for Environment, Food and Rural Affairs), which did not seek a licence for the Prosser Study on the basis that it was not a regulated procedure for the purposes of section 2 of the 1986 Act.  We were told that, with regard to the scope of “experiments”, a different view of the construction of the 1986 Directive has been taken in Austria, but, without any indication of the basis upon which a different interpretation has been accepted, that does not seem to me to be of any assistance either.  It is not suggested that the German version of the relevant European provisions sheds light on its proper interpretation.  For the reasons I have given, I consider the English version to be unambiguous.

Conclusion

51.              For those reasons, subject to the submissions of the parties as to the precise terms of the order, I would allow this appeal, quash the order of Judge Saffman and quash the determination of the CRD dated 29 January 2016 that the Prosser Study is a vertebrate study to which the data sharing provisions of article 62 of the Regulation apply.

Lord Justice Leggatt:

52.              I agree.

The Senior President of Tribunals:

53.              I also agree.

Posted on March 8, 2018 .

Top SQP from Mole Country Stores

The animal health sector recognised the top Suitably Qualified Persons (SQPs) at the Animal Health Distributors Association’s annual conference dinner held at the Hilton Metropole Hotel near Birmingham last week.

The three candidates achieving the highest scores in the Animal Medicines Training and Regulatory Authority (AMTRA)’s professional examinations last year were Robyn Brown of Mole Country Stores in Billingshurst, Sussex; Nadia Leal of the Animal Medicine Chest at Flagg Court Pharmacy in South Shields on Tyneside and Emma Woolgar of the Byker branch of Pets at Home in Newcastle.

 Robyn Brown and Gaynor Hillier

Robyn Brown and Gaynor Hillier

As the top all-species SQP, Ms Brown collected the Simon Fleet Cup and a cheque for £300 from Andrew Wylie of sponsor Zoetis, as well as the AHDA Cup for the best overall student from Gaynor Hillier of sponsor Elanco.

 She completed national diplomas in animal care and agriculture before going on to take a degree in agriculture at Harper Adams University. She is currently stock supervisor at the Billingshurst branch of Mole Country Stores. “I believe it is important to let people know that there is more to the medicine counter than just selling medicines,” notes Ms Brown. ”As an SQP with an agricultural degree, I feel I have lots to offer from health plans and FECs to grassland management and nutrition.

 “Achieving SQP status has made me more of a ‘complete package’ - I enjoy an advisory role and hope it will open up more doorways into different experiences and career progression.”

 Nadia Leal and Stephen Neale of sponsor Battles

Nadia Leal and Stephen Neale of sponsor Battles

Ms Leal won the Battles Cup and a cheque for £150 as the winner of the best equine and companion animal SQP, with the AMTRA Cup for best companion animal SQP going to Ms Woolgar plus £300 from sponsor Merial.

“We are delighted to recognise the achievements of these three outstanding students,” comments, AMTRA secretary general Stephen Dawson. “It is testament to their dedication and hard work, and really reflects the commitment that we see across of all of the SQP students on our courses, as well as the businesses that support them.”

“They join almost 7,000 SQPs working across the equine, farming and companion animal sectors. These qualified professionals offer free and impartial advice on issues such as resistance; responsible use of wormers and other medicines; and general animal health and welfare. Through their professional advice on responsible use, SQPs support industry-wide efforts to keep animal medicines effective into the future,” he concludes.

 

Posted on January 31, 2018 .

Countrywide sells its last trading asset

Countrywide Farmers has announced a two month delay in completing the divestment of its stores chain to Mole Valley Farmers (MVF), while it has also sold its LPG fuels business which effectively leaves Countrywide with no trading assets.

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The Countrywide board agreed to sell the Retail division to MVF in late October, subject to review by the Competition and Markets Authority, with completion scheduled to occur before the end of January 2018. But, with the agreement of MVF, completion is now not expected until March 16th this year in order to “enable competition review work to be progressed”.

With the Retail division gone, Countrywide had originally had intended to focus on its Rural Energy and Turf & Amenity businesses (Direct Sales) that reported an operating profit of £2.49m on revenues of £17.96m in 2016.  But it has now agreed to sell the trade and assets of its LPG business to DCC plc, the €12.25 billion Dublin-based fuels to healthcare group, for £28.75 million. This deal should complete by the end of March.

The board had also previously announced a decision to “wind down and transfer the Turf & Amenity business to an alternative provider,” although in the event the business was discontinued in November, rather than being sold as an ongoing concern.

The latest disposals leave the business with just its freehold property portfolio and associated rental income. The business is now being managed by former chief finance officer Julie Wirth, who succeeds chief executive John Hardman this week.

Countrywide Farmers was formed in 1999 through the merger of West Midlands Farmers (WMF) and Midland Shires Farmers, although both businesses had been significant consolidators over the preceding century since their formation in Worcestershire in the early 1900s.

It grew to record revenues of £306 million in the year ended May 31st 2013, before a strategic decision in late 2014 to sell its Agricultural activities – feed distribution, grain marketing and arable input sales – as it lacked the scale to compete with larger companies in the sector. It also meant the company could concentrate on its higher margin Retail and Direct Sales businesses in line with an ambition to seek an Alternative Investment Market listing.

However, a series of subsequent Retail losses, attributed to reduced farmer spending, competitive trading conditions and the difficult and delayed implementation of a new £6m retail IT infrastructure to replace a number of legacy systems, prompted the board to seek a buyer for the Retail division in May 2017.

 “We are delighted to have reached an agreement with DCC plc to acquire our LPG business,” comments Ms Wirth. “This represents an excellent opportunity for the Countrywide LPG brand to continue to grow and flourish within a leading international sales, marketing and support services group which already has a strong LPG division operating in nine countries across Europe.

Managing director of DCC LPG Henry Cubbon adds: “We are delighted to welcome the Countrywide Rural Energy – LPG team to the DCC business and look forward to continuing to develop the Countrywide LPG brand into the future.”

Posted on January 31, 2018 .

New role for CWF chief

Outgoing Countrywide Farmers chief executive John Hardman has a new position following his resignation from the company after 32 years in the wake of its sale of the Countrywide retail store chain to Mole Valley Farmers.

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He is taking on NFU Mutual agency in Marlborough, Wiltshire as senior partner. “This role is an unbelievably close match to my future objectives, and I am really excited about running my own business in the farming/insurance sector,” he says. “Alongside this new role, I intend to extend my non-executive director work.”

Mr Hardman started his career at the West of England Farmers supplies co-operative in 1985, which merged with West Midlands Farmers (WMF) four years later. He was appointed Agri Director of WMF Limited in 1997, becoming Director of Agri Sales for Countrywide Farmers on its formation through the merger of WMF and Midland Shires Farmers in 1999.

Subsequent promotions saw him appointed as Countrywide’s deputy managing director in 2003 and managing director in June 2004. Mr Hardman is also a non-executive director of United Farmers, the procurement business operating on behalf of a group of co-operative members.

Posted on January 31, 2018 .

Cefetra acquires Premium Crops

Cefetra has increased its capacity to procure UK grains and oilseeds through its agreement to acquire Premium Crops from Technology Crops International (TCI), subject to completion conditions. Financial details have not been disclosed.

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Premium Crops, based in Hambledon, Hampshire, was established in 2001 by two former Robin Appel executives, Nigel Bazeley and Edward Willmott, to specialise in alternative combinable crops such as linseed and HEAR rapeseed. As well as the core oilseeds, it has since built a portfolio of specialist cereals including canary seed, millet, naked oats and red wheat. The business reported a £23.3 million turnover in the year ended September 30th 2016.

In 2014, the business was bought by TCI, the US-based alternative crops company formed by Andrew Hebard, who started his career with Allied Grain and its Kings subsidiary, now part of Frontier Agriculture. That led to the UK TCI operation in Braintree being merged into Premium Crops with Andrew Probert as managing director of the combined business.

Mr Hebard says the divestment strategically aligns with TCI’s investment plans for its Natures Crops operating business unit in the UK (headquartered in York) and North America, focussing on developing the growing ahiflower crop and end use market. “Natures Crops is a vertically integrated natural products business - from soil to oil - and this is the basis of our longer term strategy for investment, as opposed to more traditional agricultural merchanting,” he explains.

Cefetra trades over 4 million tonnes of feed materials in the UK each year. It has been part of the €15.4 billion German multinational BayWa Group since 2012, and is active across Northern and Central Europe. In 2015, Cefetra UK acquired the Wessex Grain co-operative based in Somerset, now trading as Cefetra Wessex, and opened an office in Norfolk as Cefetra Anglia last year.

The latest deal further enhances Cefetra’s capabilities to purchase grains and oilseeds direct from UK farmers, says its managing director Andrew Mackay. “We will be able to further diversify our portfolio in the speciality markets offering both the farmers in the UK and our customers across Europe an even wider range of products and services.

“We believe the acquisition of Premium Crops will allow us to add value to the services we can offer to our customers, both growers and end users alike. We are thrilled to partner with a dynamic team that has such a great depth of expertise - the combined business is set to become the commanding force in speciality crops in the UK.”

Mr Probert adds that the Premium Crops board was looking to take the business to the next level. “Negotiations started about 18 months ago, when we were aware that Cefetra was looking to diversify its business. It was the obvious partner, providing access to significantly greater resources; enabling us to offer our growers an unbeatable range of cropping options with outstanding agronomic support and unrivalled access to premium crop contracts; all backed by one of UK agriculture’s strongest businesses.

“Speciality crops provide growers a way to differentiate their products, adding value whilst reducing their risks,” Mr Probert continues. “Demand for these crops is growing across multiple industries and we believe these premium crops represent a small yet key component of the future of a diversified and specialised arable agricultural market globally. Cefetra will enhance our ability to identify new market opportunities and increase the availability of genetics, whilst giving us a greater presence on farm.”

The Premium Crops business will continue to operate from its existing base, maintaining its name and staff. “On an operational level, we fully expect this change to be invisible for our suppliers and customers,” concludes Mr Probert. 

Posted on January 31, 2018 .

Gove: BPS to be phased out over five years

Last week’s Oxford Farming Conference was dominated by Michael Gove’s elaboration of his green Brexit vision and the need for change, which was well trailed in the national press.

Gove’s wide ranging speech set Brexit against the wider challenge of meeting the needs of a growing world population; unprecedented technological change, especially in digital communications, artificial intelligence and biotechnology; and the need to protect the environment and natural capital upon which all economic activity ultimately depends.

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“If we want to preserve that which we cherish – a thriving agriculture sector, a healthy rural economy, beautiful landscapes, rich habitats for wildlife a just society and fair economy – then we need to be able to shape change rather than resist it. We should be seeking to cultivate the resources, policies and people that will allow us to adapt, evolve and embrace change as an ally,” he said.

On Brexit and a new British agricultural policy, he made it clear that the days of state support based on land ownership are numbered – this has “increased land values and inhibited innovation while entrenching lower productivity”.

Defra is seeking to ensure more British food is specified in public procurement contracts, as one measure among “new methods of providing financial support for farmers which move away from subsidies for the inefficient to a model of public money for public goods”.

Mr Gove reiterated the government’s manifesto pledge to maintain current BPS funding levels until 2022. He envisages a further transition period for England – not the devolved administrations that will set their own policies – reported in the national press as maintaining BPS until at least 2024. But within this timeframe, BPS payments would be capped, although cross compliance conditions would be less onerous. ”The guaranteed income should provide time for farmers to change their business model if necessary, help to make the investment necessary for any adjustments and prepare for the future. We will also look at ways to support farmers who may to choose to leave the industry.

“After the transition, we will replace BPS with a system of public money for public goods – particularly environmental enhancement, productivity enhancement, reforming land-based education and bringing research work and farm practice close together.”

Mr Gove promised a new policy emphasis on the whole food chain – not just production, but recognising the relationship between food and the economy, public health and the natural environment.

He also pledged to reduce the bureaucracy associated with RPA and Countryside Stewardship schemes, saying that application forms should take no longer than a working day to complete. There would be a more integrated farm inspection scheme, based on risk assessment rather than box ticking.

Turning to post Brexit trade, Mr Gove said he is “confident of building a new economic partnership with the EU that guarantees tariff-free access for agri-food goods across each other’s borders,” while pursuing new trade opportunities outside Europe.

At the same time, “It would be foolish of us to lower animal welfare or environmental standards in any trade deal. We will succeed in the global market because we are competing at the top of the value chain, not trying to win a race to the bottom.” Mr Gove added that food labelling should reflect how farmers score on issues such as soil health and animal welfare.

Questioned on glyphosate, Mr Gove recognised the active as an invaluable tool to help systems that enhance soil health, and agreed that there should be a more science and risk-based way to regulate pesticides. While stopping short of endorsing GM technology, he said the priority must be soil health, so no new technologies that can help this should be ruled out. Future policy must not be ruled by past debates, and we should be open to the benefits of promising new technologies such as gene editing.

Speaking on the same platform, Paolo de Castro, MEP, vice chairman of the European Parliament’s agriculture committee, said that Brexit was much less of a priority in the EU than the UK. He believed that Brexit would cost the EU budget around €10 billion year - €3bn les for the CAP – half of which it will recoup through higher charges on the 27 member states and 50% through cost cutting from the new 7 year budget starting in 2021.

Meanwhile, the CAP will continue to evolve, with further simplification and an increased emphasis on risk-management.

On future UK trade with the EU, Mr de Castro noted that the agrifood chain is highly integrated across the EU, so Brexit will cause some disruption. A trade deal is possible, but the timetable is very tight, he warned. The current EU Budget period ends on 31.12.2020, so any transition period would have to finish then too.

Conference presentations can be viewed via the www.ofc.org.uk/conference/2018/videos webpage.

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Posted on January 31, 2018 .