Reviewing a private label or co-packing agreement

A private label or co-packing agreement puts the brand owner's name on a product that someone else makes, so the law treats the brand owner as responsible for it while the co-packer controls how it is made. The agreement has to hold the recipe, the specification, the labelling, the food safety obligations and the recall procedure together, and say who pays when they fail. I review the agreement from the brand owner's side and return it marked up with a written explanation of the changes and which ones a co-packer will accept, for a fixed fee of £495 in three working days.

Who this is for

Food and drink brands, supplement and cosmetics businesses and retailers in England and Wales that have products made and packed to their specification by a contract manufacturer under their own brand, and have been sent the co-packer's agreement or want their own checked. The brand owner and the co-packer are businesses; consumer law matters because the brand owner sells the product to the public under its name.

What to look for in a co-packing agreement

The recipe, the specification and who owns them

The agreement should attach the product specification, the approved reference sample and, where the brand owner supplies it, the recipe, and should say that the recipe and the specification belong to the brand owner and may be used only to make its product. Where the co-packer developed the recipe, the review checks whether the brand owner owns it, has an exclusive licence to it, or has nothing, because that decides whether the product can move to another factory. The recipe is protected as a trade secret under the Trade Secrets (Enforcement, etc.) Regulations 2018 only if the brand owner has taken reasonable steps to keep it secret, and the confidentiality clause is one of those steps.

Labelling responsibility and the name on the pack

For food, the business under whose name the product is marketed is responsible for the food information on the label under Article 8 of Regulation (EU) No 1169/2011 as retained, enforced through the Food Information Regulations 2014, so the brand owner carries the allergen, ingredient and nutrition declarations even though the co-packer generates the data. The review checks who prepares the artwork, who signs off the allergen and nutritional information, who is liable if the declared contents do not match the product, and that the co-packer warrants the accuracy of the data it supplies for the label.

Food safety, hygiene and traceability

The co-packer is the food business operator for the manufacturing site under the Food Safety and Hygiene (England) Regulations 2013 and must keep the traceability records required by Article 18 of Regulation (EC) No 178/2002 as retained, but the brand owner is the business that places the product on the market. The agreement should require the co-packer to hold the accreditation the brand owner's customers demand, to allow audits, to notify deviations from the specification, and to keep batch records that let a problem be traced to a run. The review checks that a breach of section 14 of the Food Safety Act 1990, selling food not of the nature, substance or quality demanded, is a risk the co-packer has undertaken to prevent, not one it has excluded.

Recalls, withdrawals and who pays

Under Article 19 of Regulation (EC) No 178/2002 a food business that has reason to believe a product it has placed on the market is unsafe must withdraw it and inform the authorities. The agreement should set out who decides on a withdrawal or recall, who notifies the Food Standards Agency and the retailers, who manages the logistics, and who pays: the co-packer where the cause is manufacturing, the brand owner where the cause is its own recipe or artwork. The review checks that the co-packer's liability for recall costs is not capped at the price of the affected run, and that product liability insurance stands behind the indemnity. For non-food products, the General Product Safety Regulations 2005 make the brand owner the producer as the business that puts its name on the product.

Exclusivity, minimum runs, forecasts and packaging stock

The commercial terms decide whether the arrangement works: whether the co-packer may make the same or a similar product for another brand, whether the brand owner may use another factory, minimum order quantities and run sizes, binding forecasts and what happens to packaging and ingredients bought against them, and price changes tied to ingredient costs. The review asks for exclusivity on the brand owner's own recipe at least, for forecasts to bind only for the near period, for packaging bought against a forecast to be paid for only if the brand owner cancels, and for price increases to be evidenced and notified.

Ownership of the goods, payment and termination

Where the brand owner supplies ingredients or packaging, the agreement should say they remain the brand owner's property while at the factory, and where the co-packer supplies them, the review checks the retention of title clause under section 19 of the Sale of Goods Act 1979 against the point at which the brand owner pays. The Late Payment of Commercial Debts (Interest) Act 1998 applies between the parties. On termination the brand owner needs its recipe, artwork, tooling and any remaining stock or packaging returned, a final run to bridge the move to another factory, and a restriction on the co-packer using the recipe or selling the product to anyone else.

What it costs

Standard review, £495. Marked-up document and a written explanation of the changes. Three working days.

Complex review, £895. Heavily negotiated or unusually complex documents. Five working days.

Buying online forms the engagement on payment. The scope is what the contract review page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• Your own contract returned with my amendments as tracked changes, plus a clean version with every change accepted, ready to send to the other side
• Comments in the document where a point needs explaining
• A written explanation of what I have changed and why, by email or as an attachment if it is lengthy, marking the points I would hold firm on and the ones that are negotiable
• A view on what is normal market practice and what is the other side pushing their luck
• One round of follow-up questions by email, included

What is not included

• Negotiating directly with the other side, which I quote separately once I know who is on the other side. Where the other side is willing to share a live document, I can work in that document directly
• Drafting a replacement contract from scratch
• Advice on the law of any jurisdiction other than England and Wales
• Tax, accounting or regulatory advice
• Disputes about a contract that is already signed

Questions I am often asked

The co-packer developed the recipe for us. Do we own it?

Only if the agreement says so. Without an assignment or an exclusive licence the co-packer keeps the recipe and can make the product for another brand once you leave. The review checks what the agreement gives you and asks for ownership or, failing that, exclusivity and a right to take the recipe with you on termination.

If the allergen declaration is wrong, who is liable?

You are, as the business under whose name the product is sold, and the enforcement action lands on you. The review asks for the co-packer to warrant the accuracy of the ingredient and allergen data it supplies, to notify any change of ingredient or supplier before it is used, and to indemnify you where the error is its own.

Who pays for a recall?

The agreement should say, and the review makes sure it does: the co-packer where the cause is manufacturing, hygiene or contamination at the site, you where the cause is your recipe or artwork, with the co-packer's liability uncapped or capped at a figure its product liability insurance covers rather than at the price of the run.

Related guidance and services

• Contract review, £495, the service this page describes
• Terms and conditions drafting, £995
• Reviewing a manufacturing agreement with an overseas factory
• Reviewing a supply agreement with a supermarket or big retailer

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: September 2026. Email geoffrey@caesar.co.uk.