Extreme weather events are becoming more frequent and more intense, creating new pressures on food production, workforces, transport networks and supply chains.
The food and drink sector has long been accustomed to managing disruption. However, many contractual frameworks were developed on the assumption that severe weather events would remain rare exceptions, and that invoking the force majeure clause would be even rarer. Those assumptions are now being tested.
A growing operational risk
Food manufacturers operate within highly interconnected supply chains. A disruption in one location can quickly create consequences across an entire production network.
Extreme heat provides a useful example. Recent heatwaves in the UK have caused widespread disruption across transport and energy infrastructure. We have seen railway tracks buckle, overhead cables sag, roads soften, water use restricted and electricity networks come under significant strain. The Met Office has observed that increasingly frequent heat events are creating challenges across transport, energy, agriculture and food production. These look unlikely to go away.
For food manufacturers, these events can lead to production delays, failed or reduced harvests, workforce disruption and health concerns, and water usage restrictions, to name a few.
The challenge is compounded by the complexity of modern food supply chains. A manufacturer may have contingency arrangements for its own facilities but remain vulnerable to disruption affecting growers, suppliers, subcontractors, logistics providers or energy infrastructure elsewhere in the supply chain, including several tiers removed from the finished product.
Why contracts matter more than ever
When disruption strikes, business leaders understandably focus on maintaining operations and preserving supply. Yet the contractual position quickly becomes critical.
- Can delivery deadlines be extended?
- Who bears the financial consequences of delays?
- Can prices be adjusted to reflect increased costs?
- Can obligations be suspended?
- Does either party have the right to terminate?
The answers depend largely on how the contract has been drafted. Under English law, contractual risk allocation remains paramount. Courts are generally reluctant to rescue parties from commercial bargains that have become more difficult or expensive because of changing circumstances.
As a result, food manufacturers should view contracts not simply as legal documents but as tools for operational resilience.
The force majeure question
Whenever a major disruption occurs, attention typically turns to force majeure clauses.
Contrary to popular belief, force majeure is not a standalone legal doctrine under English law. Its effect depends entirely on the wording agreed by the parties. Without expressly agreeing to a force majeure clause, neither party can expect to benefit from its protection if circumstances become challenging. However, the much narrower common law doctrine of frustration may sometimes apply.
A typical force majeure clause may excuse a party from performing contractual obligations if an event outside its reasonable control prevents, hinders or delays performance. Such clauses often include natural disasters, severe weather events, floods, fires, storms, pandemics and government actions.
However, successful reliance on force majeure is rarely straightforward.
The affected party usually needs to demonstrate:
- That the event falls within the contractual definition
- That the event caused the failure to perform
- That reasonable steps were taken to mitigate its impact
- And that any contractual notice requirements were complied with
Importantly, increased cost alone is generally insufficient. English courts have consistently held that a contract becoming less profitable or more expensive to perform does not automatically give rise to force majeure relief.
If extreme weather is becoming predictable, is it still force majeure?
This is perhaps the most interesting question facing food manufacturers today.
Historically, force majeure clauses were often associated with exceptional and unforeseen events. But as climate change increases the frequency of floods, heatwaves, droughts and wildfires, can these events still be treated as extraordinary?
The answer: it depends on the drafting.
Under English law, there is no general rule that a force majeure event must be unforeseeable. Where the clause is silent on foreseeability, courts focus primarily on the wording used by the parties. Indeed, case law suggests an event can still qualify as force majeure even if it was foreseeable when the contract was entered into.
However, difficulties arise where contracts specifically require that the event could not reasonably have been anticipated or avoided. In such cases, increasingly common weather events may become harder to characterise as force majeure.
Recent commentary highlights this tension. As extreme weather becomes more frequent, businesses may find it increasingly difficult to argue that heatwaves, flooding or similar events were genuinely unforeseeable.
Instead, these risks may be regarded as part of the ordinary commercial environment that businesses should plan for. If extended periods of high temperatures become the norm for UK summers, it becomes harder to argue that the impact of yet another heatwave was unforeseeable.
The practical implication is that food manufacturers should not assume that generic force majeure wording will provide adequate protection against recurring climate-related disruption.
Moving beyond traditional force majeure
Forward-looking organisations are increasingly exploring broader contractual tools for managing climate-related risks.
These may include:
Bespoke force majeure
Rather than relying on off-the-shelf boilerplate drafting, tailoring the clause to the risks, locations, supply chains and dependencies affecting food production and supply.
Business continuity obligations
Contracts can require suppliers to maintain and regularly test business continuity plans, disaster recovery arrangements and alternative production capabilities.
Alternative sourcing arrangements
Manufacturers may seek rights to source ingredients, packaging or products from alternative suppliers where primary suppliers cannot meet demand due to prolonged disruption.
Price adjustment and hardship mechanisms
Extreme weather can increase manufacturing, transport and energy costs. Carefully drafted price review and hardship clauses may allow parties to renegotiate commercial terms before financial pressures become unsustainable.
Climate-conscious contract drafting
A growing body of climate-related contractual drafting seeks to allocate climate risks more explicitly, requiring supply chain transparency, resilience planning and climate risk management obligations.
Building resilience before the next event
Food manufacturers cannot prevent extreme weather. They can, however, improve their ability to respond.
Many organisations are focusing on practical resilience measures such as supply chain mapping, dual-sourcing strategies, inventory buffers, alternative logistics routes and enhanced supplier monitoring.
Contracts should support these efforts. The strongest agreements increasingly combine legal protections with operational resilience measures, creating clear expectations around information sharing, escalation procedures, business continuity planning and recovery obligations.
For food manufacturers, extreme weather is no longer an occasional disruption. It is becoming a recurring business risk affecting operations, supply chains, and contractual performance.
Force majeure clauses remain important, but businesses should not assume that traditional drafting will provide a complete solution. As climate-related events become more frequent, the focus is shifting from reacting to crises towards proactively allocating risk and building resilience.
The key question for food manufacturers is no longer whether an extreme weather event will occur. It is whether their contractual framework is prepared when it does.
About the author
James Crayton is a partner and head of manufacturing at Walker Morris.