There is mounting evidence to show that each person's metabolism is different; meaning that generalised approaches towards dieting do not work. Instead, developers are increasingly leveraging consumers' personal health data to provide bespoke diet plans. Like a suit cut in celebration of losing a few pounds around the waistline, diet plans and advice can be tailored to the individual user. These apps sit in the grey area between lifestyle products, that are subject to general product safety requirements, and medical devices, that are tightly regulated.

Red tape measures

To determine whether a diet app should be regulated as a "medical device", developers should assess their product against the definition set out in the Medical Devices Regulations 2002. A "medical device" is a product, "together with any software necessary for its proper application" that is used to diagnose, prevent, monitor, treat or alleviate a disease, or is used to investigate a physiological process. A similar definition applies to products placed on the EU market under Regulation 2017/745 on medical devices. A diet app may fall within the definition if it includes elements that monitor health data such as heart rate or blood sugar levels.

In addition, guidance by the Medicines and Healthcare products Regulatory Agency (the MHRA) is intended to help developers determine whether apps should be regulated as medical devices. According to the guidance, if an app has just one function that is captured by the 2002 Regulations, such as investigating a physiological process, then it should be classified as a medical device. On the other hand, the guidance sets out a list of functions that will not amount to a medical purpose per se, such as allowing users to monitor their "wellbeing" or simply to transmit medical data without changing it.

Healthy choices

Establishing whether an app is a medical device is only part of the battle. App developers may also want to provide users with dietary advice, to complement the app's other functions and improve users' health.

However, developers should be aware of the risks associated with offering unqualified professional advice. Users could act upon advice in a way that adversely affects them, which could provide the basis for litigation. Developers should consider choosing to provide the service via clinicians or registered healthcare professionals.

Developers who market their products with claims that users will receive advice from "dietitians" should ensure that the advisers are qualified and registered as such. In the UK, "dietitian" is a professional title that is protected by law. "Dietitians" are held to high standards under the Health Professions Order 2001, by the Health & Care Professions Council (HCPC) and the British Dietetic Association (BDA).

The risk of losing more than a few pounds

Developers whose apps should be classified as medical devices but fail to seek registration of the product are at risk of investigation by the MHRA, and financial or criminal penalties.

Claimants could also bring claims under the Consumer Protection Act 1987, alleging that a defect in the app caused an injury. This could arise where an app fails to deliver correct data on a user's health, such as based on calculations combining exercise and physiological readings, and the user acts on the data in such a way that their health is affected.  

Exercising judgement

The scope of apps that can target the dietary and healthcare market ranges from fitness trackers that monitor exercise and calorie intake, through to those that analyse physiological data such as glucose levels and blood pressure, accompanied by professional and bespoke nutritional advice.

Judging the difference between what is a mere lifestyle app and what should in fact be a regulated medical product or service can be difficult. In a booming market, the developers who get it right can look forward to making a healthy profit.

Now that we are firmly into 'Beyond' territory, we recorded a follow-up discussion in July 2021 with the panellists which focusses on:

• How the months immediately following the expiry of the transition period have compared to their expectations last November
• The major trends / themes observed during that time
• Top tips for the food & drink sector as it continues to navigate the way forward

Chaired by: Ciara Cullen, Head of Food & Drink, RPC

Panellists:

• Nicola Hetherington, Senior Policy Advisor, Brexit - Confederation of British Industry
• Rebekah Kendrick, Head of Brexit & EU Affairs - Wine & Spirit Trade Association
• Sally Jones, UK Trade Strategy and Brexit Leader - EY

This conversation was recorded in July 2021 but the advice and tips from our panellists are still relevant and applicable today.

You can view the recording below, if you have any questions please do not hesitate to contact us.

Access the full edition of RPC Bites here.

SeltzerGate - the ASA adopts a hard line on hard seltzer ads

Over the past year, the ready-to-drink category has thrived. The trend is partly driven by COVID-19 (and the associated increase in al fresco gatherings) but also by expanding product ranges; cue the hard seltzer. The alcohol based sparkling water drink has seen a whopping 1,087% growth since January 2020. However, the risks of marketing the lower calorie but still alcoholic option are apparent from the ASA's recent rulings against not one, but four brands: BrewDog, DRTY DRINKS, WHISP and High Water.

For all four businesses, the problematic sections of the CAP Code were Rule 15.1, which states that only specific health claims authorised on the GB nutrition and health claims register are permissible in marketing communications and Rule 18.17, which prohibits the inclusion of health, fitness and/or weight-control claims in alcohol ads.

The CAP Code defines nutrition claims as any claim which states, suggests or implies that a food (or drink) has particular beneficial nutritional properties due to the amount of calories, nutrients or other substances it contains, does not contain, or contains in reduced or increased proportions. Furthermore, the only permitted nutrition claims that can be made in relation to alcohol products are 'low-alcohol' (if indeed accurate), 'reduced alcohol' and 'reduced energy'.

We consider what went wrong for each of the ads below.

1. BrewDog – 'Clean & Press Hard Seltzer' (Ruling here)

Ad (posted on Instagram): "DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY"…Even though Clean & Press is only 90 calories per can with no carbs or sugar and a little bit of alcohol, this is not a health drink. If you are looking for a health drink, do not drink Clean & Press."

Issues: “only 90 calories per can”, “no carbs or sugar” and "a little bit of alcohol".

Ruling: "No carbs or sugar" was a nutrition claim as it suggested that BrewDog's hard seltzer had beneficial nutritional properties. The inclusion of the prefix "only" meant that "Only 90 calories per can" was likewise found to be a nutrition claim. Although factual numerical calorie statements are permissible for alcohol ads, preceding them with "only" is not. "A little bit of alcohol" was also found to be problematic, as low alcohol claims are only permitted for drinks with an ABV of 1.2% or less (BrewDog's hard seltzer has an ABV of 5%).

2. DRTY DRINKS (Ruling here)

Ad 1 (posted on Instagram): “4 cans of DRTY and a scotch egg please. #spikedseltzer […] #nosugardiet #keto #ketodiet #carbfree […] #zerosugar #nocarbs #lowcalorie".

Ad 2 (posted on Instagram): “Everyone: There’s a pandemic happening and it’s baltic [sic] outside, should probably stay in. Me: Solo DRTY’s in the garden? Don’t mind if I do. #spikedseltzer”.

Issues: Text, imagery and hashtags.

Ruling: The ASA found that “#lowcalorie”, “#nosugardiet”, “#zerosugar”, “#keto”, “#ketodiet”, “#carbfree", and “#nocarbs” were all nutrition claims that were not permitted for alcoholic drinks.

A further issue for DRTY Drinks was that under Rule 18.1 of the CAP Code, marketing communications must be socially responsible and must contain nothing that is likely to lead people to adopt styles of drinking that are unwise, including excessive. By encouraging the consumption of multiple cans of DRTY's seltzer, in one sitting, by one individual, the ASA found that both ads depicted excessive drinking in a positive manner and therefore breached the CAP Code.

3. WHISP (Ruling here)

Ad (posted to WHISP's website): "Whisp is a refreshing, low calorie, lightly alcoholic sparkling water – the perfect accomplice to a balanced lifestyle… MILK THISTLE Natural detox hero!... HEALTHIER CHOICE Low in sugar, calories and alcohol".

Issues: (1) “lightly alcoholic” and “Low in […] alcohol”; (2) “low calorie” and “Low in sugar, calories …”; and (3) “MILK THISTLE Natural detox hero”, “HEALTHIER CHOICE” and “the perfect accomplice to a balanced lifestyle”.

Ruling: As with BrewDog's Clean & Press Hard Seltzer, by making a low alcohol claim in relation to a product that contained 4% ABV, WHISP breached the CAP Code. Furthermore, “low calorie” and “Low in sugar, calories …”, both amounted to a nutrition claim that was prohibited for alcohol products. Whilst ads for alcoholic drinks can provide factual information about contents, "MILK THISTLE Natural detox hero!" strayed into the general health claim territory and therefore amounted to a further CAP Code breach, under Rule 18.17.

4. High Water (Ruling here)

Ad (posted to High Water's website): “HARD SELTZERS FOR THOSE WITH A THIRST FOR LIFE...For those who love catching up with friends without undoing all the good from their active lifestyle… UNDER 100 CALORIES PER CAN".

Issues: "UNDER 100 CALORIES PER CAN" and "without undoing all the good from their active lifestyle.”

Ruling: By this point, readers will know the drill; prefixing 100 calories with "under" meant the claim was a prohibited low calorie/energy nutrition claim. The ASA also found that "without undoing all the good from their active lifestyle…” was a prohibited health claim, as it was directed at calorie conscious consumers and suggested that High Water's seltzer would be less impactful to their wellbeing than other alcoholic drinks.

The ASA also considered whether other sections of the ad breached the requirement for alcohol marketing communications to be socially responsible, by suggesting that the drink had therapeutic qualities, but this issue was not upheld.

The ASA's quadruple whammy sends a clear message to those promoting hard seltzers: comply with the CAP Code or risk the withdrawal of your ads.

Dimbleby calls for salt and sugar taxes

In the first independent review of England's food system for 75 years, in 2019, the Government commissioned Leon co-founder and DEFRA executive director, Henry Dimbleby to analyse England's food system. The intention: to "transform the food system…into something better for the future". In 2020, part 1 of Dimbleby's 'National Food Strategy' (the Strategy) focused on how to carry the country through the COVID-19 pandemic and the Brexit transition period. Now, in part 2 of the Strategy, Dimbleby has outlined a flurry of recommendations including, what has been described by food and drink suppliers as, "a tsunami of new taxes" on processed food.

Although Dimbleby's report contains 16 recommendations (which you can view here), it is recommendations 1 and 2 that have sent shockwaves through the industry:

• Recommendation 1: The introduction of a sugar and salt reformulation tax, the revenue from which should be used to provide low income families with fresh fruit and vegetables; and
• Recommendation 2: Mandatory reporting requirements for large food companies.

Dimbleby endorses a £3 per kilogram tax on sugar and a £6 per kilogram tax on salt sold wholesale, for use in processed foods or to restaurant and catering businesses. The tax is expected to encourage manufacturers to reformulate products so that they contain less sugar / salt in order to avoid the tax, much like the effect of the Soft Drinks Levy. The rationale for the proposed tax is to significantly cut the country's sugar / salt intake and in turn, reduce obesity, a health concern which has been at the heart of Government policy recently, due to its identification as a COVID-19 risk factor. To hold companies accountable, Dimbleby also wants to see mass reporting on sales of foods high in fat, salt and sugar (HFSS), as well as sales of protein, fruit and vegetables.

Hot on the heels of the Government's HFSS advertising and promotion restrictions (see RPC Bites issues 24 and 34 for more details), the report will be another blow for food and drink manufacturers. The Food and Drink Federation has warned that the proposed tax could lead to price increases for consumers and will put additional pressures on manufacturers who are already working hard to reformulate products so that they are better for consumers.

The industry will now sit tight as the Government considers Dimbleby's report. A formal response, in the form of a White Paper, is due to be published within 6 months. Read more

Eco-scores will be piloted on British labels in September 2021

How environmentally friendly is your supermarket shop? With more and more consumers asking this question, businesses have been quick to respond with a range of environmental initiatives. In recent issues of RPC Bites, we have reported on Gousto's carbon labelling trial (here) and the launch of BrewDog's first carbon negative beer club (here). Continuing the theme, it has recently been announced that 'eco-scores' will be piloted on British food labels from September 2021.

Foundation Earth, a non-profit NGO backed by many major brands across the food and drink industry, is launching a pilot scheme for a new 'eco-scores' traffic-light system. The scores will appear on the front of food packaging and will denote the environmental impact of the product in question, thereby allowing consumers to make environmentally conscious choices.

Scores will range from A+ to G and will be colour-coded, with the top green A+ rating reserved for the least impactful products. In calculating a product's impact on the environment, the eco-scores will account for various factors including water usage and pollution, carbon emissions and the contribution of farming, packaging and transport processes.

It is hoped that these labels will have a meaningful impact on consumer shopping habits, thereby encouraging businesses to adopt innovative ways to reduce their environmental impact in order to secure better eco-scores. Read more

Russia v France and Italy v Croatia – forget the Euros, we're talking fizz!

Russian President, Vladimir Putin, has recently passed legislation mandating that shampanskoye (the Russian word for Champagne) can only be applied to sparkling wines of Russian origin. Under the controversial new law, all non-Russian Champagne sold in Russia must be labelled 'sparkling wine'. Putin's move defies Champagne's protected appellation d’Origine Contrôlée, which in over 120 countries, means the term can only be used to describe produce from the Champagne region that has been produced in accordance with specific rules.

The French Champagne producers’ committee has said that the region is "scandalised" by the legislation and is calling on French and European officials to demand that "this unacceptable law be modified." It has also called for the suspension of champagne exports to Russia. French Agriculture Minister, Julien Denormandie, has also commented, stating "France's position is very clear. The word champagne comes from those beautiful regions of France where champagne is produced."

Italy has also been on the offensive (and not just in footballing terms), reigniting designation wars with Croatia. Prošek (pronounced pro-sheck) is a syrupy Croatian dessert wine, with little similarity to prosecco other than in name. Meanwhile, the Italian sparkling wine 'Prosecco' boasts legal protection through a suite of certifications including Designation of Controlled Origin (DOC), Designation of Controlled Origin and Guaranteed Status (DOCG), Protected Designation of Origin (PDO) and Protected Geographical Indications (PGI).

In 2013, Croatia sought EU recognition for the name 'Prošek', but its application was swiftly refused for being too similar to 'Prosecco'. Croatia has once again applied to the European Commission for special recognition of Prošek, contending that the wine has been made for over 2,000 years (far longer than Prosecco's 90 year reign).

With France eliminated from the Euros on penalties, we wait to see how it will fare against Russia in the Champagne championships. And will the European Parliament call foul play on Croatia or Italy?

British meat will continue to be sold in NI after grace period is extended

The EU has agreed to formally extend the grace period for the movement of British chilled meat products to Northern Ireland (NI) meaning Northern Irish consumers can enjoy British meat for another 3 months.

Imports of chilled meat products, such as fresh sausage and burgers, from third party countries are not permitted by the EU. Since NI essentially remains in the EU single market and is subject to EU customs checks at ports, a grace period was granted to give Northern Irish food businesses time to set up new supply chains. The grace period was originally due to end on 30 June 2021 but has now been extended, at the UK Government's request, until 30 September 2021.

The extension should ensure a smoother transition period, buying key stakeholders like supermarkets further time to adapt their supply chains to meet post-Brexit regulations. However, the UK Government has acknowledged that a permanent solution remains to be agreed and the European Commission has been clear that it is "not issuing a blank cheque" for continued postponement. So whilst the summer barbecue season is safe, the long-term future remains uncertain. Read more

ASA bans 'irresponsible' Instagram ads by AU Vodka

It's been a busy few weeks for the ASA. On 30 June, the regulator challenged various Instagram posts shared by AU Vodka as 'irresponsible', by virtue of the fact that they encouraged excessive and / or unwise alcohol consumption.

The ads in question displayed various individuals holding more than one bottle or glass of AU Vodka, whilst surrounded by several other bottles of the product. Three ads were particularly problematic: The first showed a man sitting in a forklift truck holding a bottle of AU Vodka and a glass containing the drink; The second showed rapper, Chipmunk sitting in the passenger seat of a car drinking AU Vodka with multiple bottles on his lap; and The third showed another rapper, Aitch (who is under 25) holding two bottles of the product.

AU Vodka argued that the numerous bottles displayed were for 'decorative purposes' only, that alcohol measures shown in glasses were not excessive and that individuals featured in the ads were not displaying any behaviour that suggested they had consumed excessive amounts of alcohol.

Despite these assertions, the ASA found that the posts had breached Rule 18.1 of the CAP Code, which states that ads must be socially responsible and must refrain from encouraging unwise and excessive drinking habits. The fact that the ads depicted drinking in vehicles amounted to a further breach of the CAP Code, as did the fact that the third ad featured an individual under 25 years of age (under Rule 18.16, people shown drinking or playing a significant role in alcohol ads must neither be, nor seem to be, under 25).

The ASA ruled that the ads must not appear again in their current form and advised AU Vodka to ensure that future ads do not encourage excessive or unwise drinking, or link alcohol with the use of machinery and/or driving. Read more

Morrisons shoots to score in £9.5BN takeover

Hot on the heels of the Issa Brothers' acquisition of Asda (see the previous issue of RPC Bites here), Morrisons announced last week that it has accepted a £6.3BN takeover bid.

The supermarket recently rejected an unsolicited £5.5BN offer of 230p per share from private equity giant, Clayton Dubilier & Rice (CD&R). It seems that Morrisons made the right call as it has since confirmed that a deal, worth a whopping £9.5BN in total, is pending with SoftBank-owned Fortress. The deal comprises £3.2BN of debt and £6.3BN of equity, paying 252p per share and a 2p cash dividend to shareholders. It is reported that promises over the security of Morrisons' workforce, pension holders and suppliers have also been provided.

The Secretary of State for Business, Energy and Industrial Strategy, Kwasi Kwarteng, is expected to seek assurances from Fortress over the commitments in the coming weeks. We will provide updates in future issues of RPC Bites, as the deal progresses. Read more

Consumers are also increasingly concerned about their environmental footprint and are demanding greener and more sustainable products. This is particularly so within the food and drinks sector; recent research has revealed that 69% of European consumers consider sustainability issues (including packaging) when purchasing food and beverages. For those in the industry, the shift away from single-use and virgin plastics and towards more circular models presents enormous opportunities – both to tap into the growing ethical consumer market and to get ahead of the legislative curve.

A new Waste Prevention Programme for England

From 18 March – 10 June 2021, The Department for Environment, Food and Rural Affairs (Defra) ran a consultation on the Government's proposed new Waste Prevention Programme for England.  The results, once published, will reflect feedback from across the food and drink industry and will make for interesting reading. The programme outlines proposals to prevent waste and promote circularity. Strategies under consideration include:

• Extending and increasing charges for single-use carrier bags;
• Banning certain problematic single-use plastic items;
• An Extended Producer Responsibility (ERP) system, to be introduced in 2023; and
• Funding for research into alternative packaging materials (including via the £60M Smart Sustainable Plastic Packaging Fund and the £20M Plastics Research and Innovation Fund).

As recently covered in our Retail Therapy blog, some of these initiatives are already afoot. Since 1 October 2020, the sale of certain single-use plastic items, such as drinking straws and stirrers, to consumers has been banned in England, and on 21 May 2021 the Government increased the plastic carrier bag charge to 10p for all retailers. A new tax on plastic packaging containing less than 30% recycled plastic will also take effect from 1 April 2022.

The Government has also recently consulted with stakeholders on a new ERP system for packaging (which would see producers cover the cost of managing packaging once it becomes waste), and a new Deposit Return Scheme for drinks containers (expected to be implemented in late 2024, at the earliest). A summary of responses to the consultations will be published on Defra's website in due course.

For the food and drink industry, the changes are significant and add to a growing list of challenges, including COVID-19 trading constraints and a narrower scope for advertising HFSS products, that businesses in the sector are already having to adapt to.

‘Closing the loop’

Many businesses are getting ahead of the legislative curve and are moving towards circularity whereby plastic production is reduced, products are kept in use for longer and, at end of life, are recycled. At last count, over 160 businesses had signed up to the UK Plastics Pact. Led by the Waste and Resources Action Programme (WRAP), the Pact aims to eliminate problematic plastics (such as single-use and non-recyclable soft plastics and films) through innovation and packaging redesign. The recycling and reuse of other plastic packaging is also a focus. 

In a bid to specifically tackle problematic 'soft plastics' (which includes plastic bags, food wrappers, films, pouches, packets and sachets), recently, a £1M fund was established and backed by various industry giants. Dubbed the 'The Flexible Plastic Fund', the programme guarantees participants £100 for each tonne of recycled material as a minimum. The hope is that this will give soft plastics a stable value, thereby incentivising participation. Both Waitrose and Sainsbury's have already pledged their support, by announcing that they will host in-store collection points. Other retailers, such as Tesco, are already trialing soft plastics recycling in store with plans to roll this out nationwide by the end of the year. For more information, see our recent issue of RPC Bites.

"Reduce, reuse, recycle"

Within the food and drinks sector, there are already a number of great examples of the ‘reduce, reuse, recycle’ model in action. For example, Co-op’s compostable dual purpose shopping bags (as featured in RPC Bites) are expected to remove 29.5 million 'bags for life' from sale each year, saving 870 tonnes of plastic. Meanwhile, Tesco has announced it will no longer sell beer and cider cans in shrink-wrapping or plastic rings; AB InBev has piloted a new low carbon aluminum can for its Michelob Ultra product line; and Absolut has created a novel paper and recyclable plastic bottle prototype. Coca-Cola has also recently announced its transition to 100% recycled plastic in all on-the-go bottles across its entire range.

Certain businesses are also trialing reuse and refill models as an alternative to traditional linear models of packaging production. For example, Loop has partnered with Tesco and major brands to provide zero-waste packaging that can be cleaned and refilled for repeat use, and Planet Organic has partnered with Unpackaged to offer refill stations in store, eliminating the need for packaging altogether. 

These solutions present a number of opportunities: IP licencing of novel packaging designs or refilling solutions like these (which avoid plastic and are sustainable) could provide companies with a significant first mover advantage and market share; while for brands, the use of sustainable alternatives can help attract new customers and encourage brand loyalty.

Whilst there are various innovative solutions and pilot schemes in place across the sector, the next challenge will be scaling them up effectively. This will include overcoming initial hurdles such as how to design for mass production, how to deal with additional operational burdens (such as installing refilling facilities, training staff and overcoming inefficiencies) and how to ensure brand equity is retained in low packaging solutions.

Regulation and potential pitfalls

Businesses hoping to leverage the growing consumer demand for sustainable alternatives must also be careful to avoid 'greenwashing' and inadvertently breaching consumer protection laws. UK regulators, such as the Advertising Standards Authority (ASA), have shown they will not hesitate to take enforcement action where brands fall foul of rules relating to environmental claims. In December 2020, the ASA ruled that meal kit subscription service, Gousto, had breached the CAP Code (Rule 11.3) by failing to substantiate claims that its Eco Chill Box was “100% plastic free” and “100% recyclable”. Gousto was required to pull its ads and to ensure that future marketing did not mislead consumers about the composition and recyclability of its packaging.

The Competition and Markets Authority (CMA) is also clamping down in this area. Following a six-month investigation into green claims, it is currently consulting on draft guidance for businesses on environmental claims, with a view to rolling out a compliance review later this year. Further details and ‘top tips’ for compliance are available in our latest Retail Therapy article.

Whilst there are various issues to navigate, the potential rewards to both businesses and the environment alike are clear to see. If you would like advice on any of the points discussed above, please contact:

Ciara Cullen: ciara.cullen@rpclegal.com / +44 (0)7747 033 165;

Sophie Tuson: sophie.tuson@rpclegal.com / +44 (0)7712 511 815; or

Your usual RPC contact.  

Background - William Grant & Sons

WGS' 'Hendrick's' gin brand is protected by the UK trade mark shown below. The mark is registered in class 33 for "alcoholic beverages":

Hendrick's gin was first launched in 2000. It is now sold in most major UK supermarkets (not including Lidl) in the following apothecary style bottle:

Background - Lidl

Discount supermarket Lidl is well-known for primarily stocking own-brand goods. In terms of spirits, Lidl has sold its 'Hampstead gin' for approximately 10 years. The product was originally sold in the bottle on the left (below) but following a redesign in December 2020, Lidl launched the bottle on the right (below) across stores in England, Scotland and Wales: 

In April 2021, WGS issued proceedings for trade mark infringement and passing off and lodged a motion for interim interdict with the SCOS. In considering whether to grant interim relief, the SCOS noted that it was not its responsibility to determine whether trade mark infringement and/or passing off had occurred but rather, whether the claims made by WGS has a reasonable prospect of success.

WGS's claims were three-fold: (1) so-called 'confusion' infringement under s10(2) TMA; (2) so-called 'reputation' infringement under s10(3) TMA; and (3) passing off under common law. In determining whether to grant an interim interdict, the SCOS considered each claim separately. 

The SCOS decision

(i) Confusion (s10(2) TMA)

Under s10(2) TMA, a person infringes a registered trade mark if, in the course of trade, they use an identical or similar sign in relation to identical or similar goods and where because of those similarities, there exists a likelihood of confusion amongst the public.

In considering WGS' arguments under s10(2) TMA, the SCOS noted (as per Pfizer Ltd and Pfizer Incorporated v Eurofood Link (United Kingdom) Ltd) that “it must however be remembered at all times that the nature of the confusion that must be proved is confusion as to origin.”  On the evidence before it, the SCOS did not consider that a likelihood of confusion between the parties' respective gins existed. This was partly due to social media evidence, which clearly showed that consumers knew 'Hampstead' was a Lidl product and partly due to Lidl's reputation for predominately stocking own-brand goods.

On that basis, the SCOS found that it was "unable to conclude that the average consumer would be likely to be confused as to common commercial origin" of the products and declined to grant an interim interdict in relation to the claims made under s10(2) TMA. 

(ii) Passing off

To succeed in a claim for passing off, the claimant must satisfy the well-established Jif Lemon trilogy of goodwill, a misrepresentation on the part of the defendant and damage.

In considering whether a misrepresentation had been made by Lidl, the SCOS considered a range of factors including the product names (which it found were distinguishable), the location where Hampstead was sold (Lidl stores only) and the price of both gins (£15.99 for Hampstead and c£30 for Hendrick's). The SCOS also noted that for the purposes of passing off, the fact that one product merely brings another to mind is not enough.

That being the case and bearing in mind the above factors, the SCOS held "there is currently no reasonable prospect that the test for a misrepresentation required for passing off will be met".  It therefore declined to grant an interim interdict in relation to the claims made in passing off. 

(iii) Reputation (10(3) TMA)

Claims under s10(3) TMA are reserved for trade marks with a reputation. Under that section, a person infringes a registered trade mark if they use an identical or similar sign in relation to any goods and/or services if the use takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark.

The bar for establishing reputation is not especially high and the SCOS was therefore in "no doubt" that WGS' mark had the necessary reputation in the UK. It then moved on to consider unfair advantage and/or detriment, which ordinarily requires a claimant to show that a change in consumer behaviour has occurred or is likely.  

In the present case, the SCOS found that WGS had a reasonable prospect of showing that there was a real likelihood of a change in the economic behaviour of consumers, causing an unfair advantage to Lidl. On the balance of convenience, the SCOS found that an interim interdict should therefore be granted in relation to the claims made under s10(3) TMA. 

Although a Scottish decision, the case serves as a useful reminder that the mere calling to mind of another product is not sufficient to succeed in establishing passing off. Likewise, the case also demonstrates that establishing a likelihood of confusion is extremely difficult where consumers perceive similarities between two products but clearly appreciate their separate origins (as the social media evidence demonstrated here).

The full judgment of William Grant & Sons Irish Brands Ltd v Lidl Stiftung & Co Kg and others [2021] CSOH 55 (25 May 2021) is available here.

Last November, RPC's food and drink blog covered a series of votes by the European Parliament on plant-based food labels which can be found here. At the time, MEPs voted against banning the use of meat-related terms for plant-based products but voted in favour of imposing tougher restrictions on the labelling and packaging of plant-based dairy alternatives via Amendment 171 (the Amendment).

Using dairy terms e.g. "yoghurt" for non-dairy products is already prohibited, but the amendment sought to prohibit the use of dairy descriptors that equate plant-based products to their dairy counterparts, e.g. "yoghurt-style" or even "creamy". The Amendment would also prohibit factual allergen information linking plant-based products to dairy products and the use of packaging for plant-based products which may be too similar to the packaging of dairy equivalents. Science-based green claims comparing plant-based and dairy products were also set to be banned.

Now, having come before the EU Council and Commission, the Amendment has been withdrawn following major backlash from the plant-based sector and consumers. Major players in the plant-based arena such as Oatly and ProVeg led a petition against the Amendment, which received approximately 456,000 signatures and was backed by key environmental campaigners, including Greta Thunberg.

It remains to be seen whether the dairy industry will fight back and continue lobbying to protect so-called dairy terms.

The UK's first 4-pack with a no/lo option coming to a Tesco near you

Keeping up with the rising demand for no/lo alcohol whilst still catering to the traditional alcohol market, Tesco has released a mixed 4 can multipack of alcoholic and no/lo beers. In an industry first, each cardboard crate of the new multipack will contain 3 alcoholic beers and 1 alcohol-free option.

Not only will the move capitalise on the lucrative no/lo market, which has seen over 40% growth at Tesco over the last couple of years, but it will also tap into the popular craft beer sector - the demand for unique crafts has increased by 75% at the supermarket over the last two years.

The beers are curated by independent Manchester brewer, Cloudwater, in collaboration with 4 UK brewers, each of which are working to raise awareness and funds for causes affecting their local communities. Supporting what Cloudwater believes to be the only 100% black-owned breweries in the UK, as well as LGBTQ+ causes and vegan and socially responsible choices, the ethical beers are likely to draw a crowd regardless of the no/lo offering.

With health and wellbeing increasingly becoming a priority for shoppers, we will no doubt see more innovative no/lo sales solutions in the future.

CMA issues its draft guidance on green claims

Last November, the CMA announced that it would be investigating whether 'green' claims relating to the environmental sustainability of a product could be misleading consumers in breach of UK consumer protection law. For a more in-depth analysis, see RPC's blog on the CMA investigation here.

With ethical spending at an all-time high last year following the rise of the "conscious consumer", the CMA expressed its concern that businesses would be tempted to capitalise on this demand by making misleading or even false claims about the environmental impact of their products.

On 21 May, the CMA issued its draft guidance on environmental claims on goods and services for consultation. The guidance outlines the following 6 core principles which businesses must follow when making green claims in order to protect consumers. In short, environmental claims must:

1. be truthful and accurate;
2. be clear and unambiguous;
3. not omit or hide important information;
4. only make fair and meaningful comparisons;
5. consider the full life cycle of the product; and
6. be substantiated.

The consultation invites consumers, businesses and other key stakeholders to provide their opinion on the principles by 16 July 2021, with the aim of publishing final guidance for businesses at the end of September.

Nakd bars - confectionary or cake?

Attention: Nakd bars are officially confectionary and not cakes. Morrisons has been battling with HMRC for what it claims was a £1 million overpayment of VAT between 2014 and 2018 for healthy snack brand Nakd's popular fruit and nut bars.

Readers will probably remember the renowned Jaffa Cake fiasco back in the nineties, when Jaffa Cakes were ruled to be cakes rather than biscuits and therefore did not attract VAT. In a similar fashion, Morrisons contended that the Nakd bars were cakes as opposed to confectionary and so should be zero-rated for VAT purposes. In February of this year, following HMRC's refusal to repay the VAT on the bars after it classified them as confectionary, Morrisons appealed to the tax tribunal.

Over a three-day hearing (and various tasting sessions), the judge analysed the bars to establish their true category. Despite offering carrot cake, blueberry muffin and banana bread flavours, the judge found that Nakd bars are in fact confectionary. Of note, was the fact that the bars have a high sugar content, are sweet to taste and are eaten with fingers. The overarching sentiment was that food classification did not need to be unnecessarily complicated; if it doesn't look like cake, contains different ingredients to cake and would be out of place on a plate, it's likely that the food product is not cake.

For a similar food-based VAT debacle, check out issue 18 of RPC Bites here, where we reported on the Irish Supreme Court's decision that the sugar content of Subway's 'bread' is so high that it falls outside the legal definition of 'bread', for the purposes of the Irish VAT rules.

Digital Deposit Return Scheme coming to a retailer near you

As covered in more detail in our Retail Therapy Blog here, a deposit return scheme (DRS) allows empty drinks containers to be returned to a collection point via so-called reverse vending machines. Such schemes have already been deployed across Europe, Australia, Canada and the USA with the world leader in this space, Norway, claiming to have recycled of 97% of plastic drinks bottles sold through its scheme. The traditional DRS charges a deposit for the packaging, which is repaid to the customer when they return their packaging to an allocated reverse vending machine, the aim being to reduce the carbon footprint associated with the 14 billion plastic drinks bottles, 9 billion drinks cans and 5 billion glass bottles used in the UK each year.

However, the UK launch of the DRS has suffered delays following the Covid-19 pandemic and it is now set to be rolled out in late 2024 in England and Wales and July 2022 in Scotland. A consultation on the England and Wales schemes is currently underway and available to view here.

In a bid to combat the delay and cost of the original reverse vending machine plan, a host of big names, including Diageo and the British Retail Consortium intend to trial a Digital DRS. Put simply, by placing unique barcodes on packaging, the Digital DRS would allow customers to scan the code at a kerbside collection or "smart bin" to indicate that their packaging has been recycled. The hope is that this method will incorporate current kerbside recycling infrastructure to reduce both the cost and the carbon footprint associated with installing new reverse vending machines, the cost of which has been estimated to be over £1 billion. It should also alleviate long queues and build upon home recycling habits.

For more information, the Digital DRS Industry Working Group's written evidence can be found here.

Distin-gü-ished dessert brand acquired by Exponent

In a sweet addition to its current portfolio of food and drink businesses, Exponent (private equity firm and former owner of Quorn) has recently acquired popular dessert brand, Gü.

Pete Utting, Managing Director at Gü is hopeful for the opportunities that the new partnership will provide stating that: "the team has a deep understanding of the food and drink sector and a strong track record in adding value to well-known brands". With Simon Davidson, Senior Partner at Exponent, recognising the brand's potential for growth, both in the UK and internationally, adding that it has "the opportunity to create a truly global, premium indulgence brand".

Already occupying around 20% of the yoghurt/dessert market share in the UK and recording the largest growth in that category last year, we look forward to seeing what is next for Gü as it sets its sights global.

58 years of export health certification...

An increase in red tape was almost inevitable in the aftermath of Brexit for many exporters, but a recent study by a food exporters trade body has found that food exporters have spent a collective 58 years filling out export health certificates in 2021 following new post-Brexit requirements.

As reported on frequently in RPC Bites, the certificates are needed to ship live animals, animal products and composite food products amongst other products from Great Britain to the EU. The 58 years encompasses a whopping 89,000 certificates; a 110-fold increase from the 806 certificates issued last year. There have been calls for the UK to establish electronic certification methods to enable faster processing or alternative ways to handle exportation requirements efficiently based on product-specific requirements.

One can anticipate that the total time spent on certification in 2021 will easily surpass the age of retirement; however, many of the certifiers themselves won't be able to run into the freedom of retirement just yet with full-time checks due to commence in October.

PWS is a family run butchers which can trace its origins back to 1880. Based in Launceston, Cornwall, it trades at the higher-end of the local retail and wholesale market. The brand name 'PHILIP WARREN & SON' (often simplified to 'PHILIP WARREN') has been used by PWS since 1980. In recent years, PWS has also traded under the following logo:

When Lidl began using its 'WARREN & SONS' brand in 2015, PWS was already well established, particularly in and around Launceston. PWS was also well-known as a wholesale business, a supplier of luxury restaurants and was regularly promoted in the food press. In 2007, PWS had even been approached by US organic food giant Wholefoods, in connection with teaching staff how to set up butchers' counters in its UK stores.

Background - Lidl

Between 2015 – 2020, Lidl sold fresh meat products under the brand 'WARREN & SONS', largely using the following logo:

It was clear from the evidence that Lidl had not chosen the brand as a result of wanting to make any connection with PWS.

During this five year period, Lidl sold significant quantities of product under its 'Warren & Sons' brand. In PWS' initial letter to Lidl, its claim was valued at around £47M.

The dispute

Shortly after Lidl launched its 'WARREN & SONS' brand, PWS began to receive communications suggesting that some of its customers may have been confused into thinking that Lidl had started to sell PWS products. Whist the Court heard that PWS found this irritating, as a family business unfamiliar with IP law and with no trade mark registrations, PWS did not believe anything could be done.

After receiving legal advice, a letter before action was eventually sent to Lidl in late 2019 but by this time, Lidl was already phasing out its 'WARREN & SONS' brand. The last branded products were sold by Lidl in 2020. In the same year, Lidl also surrendered its 'WARREN & SONS' trade mark registration.

Passing off

To succeed in a claim for passing off, a claimant must satisfy the three requirements outlined in the famous Jif Lemon case: (1) Goodwill in the goods / services in question; (2) a misrepresentation leading (or likely to lead) the public to believe that the goods or services offered by the defendant are the goods or services of the claimant; and (3) damage to the claimant as a result of the defendant's misrepresentation.

(i) Goodwill

Lidl did not dispute that PWS had generated goodwill in relation to meat products or that this was significant in and around Launceston and in relation to PWS' wholesale business. The Court found however that there would likely be limited customer overlap (except for potentially in Launceston), as PWS and Lidl operated at very different ends of the market.

(ii) Misrepresentation

When considering misrepresentation, the Court considered the impact of Lidl's activities on PWS' customers. It held that the evidence of confusion was "at best, thin" and that it was unlikely that Lidl customers who were also aware of PWS would have been confused into believing the two retailers were associated. This was particularly so, given Lidl's strong reputation for primarily selling Lidl and other house branded goods.

Furthermore, whilst the two brands had traded side by side for 5 years, there had only been limited instances of actual confusion.

(iii) Damage

Lidl's use of the 'WARREN & SONS' brand was also found to have had no significant commercial impact on PWS' business. This was supported by the fact that PWS' claim for compensation was predominantly based on Lidl's sales as opposed to damage to PWS' business, which PWS had in fact been able to expand from 2015 onwards.

Accordingly, PWS' claim failed.   

Comment

The case reinforces the inherent difficulties of basing a passing off claim on a localised reputation and of demonstrating that a misrepresentation has occurred, or is likely to occur, where the businesses in question are known to operate at different ends and in different areas of the market.

The decision also serves as a reminder of the need to act quickly when the activities of another business potentially conflict with your intellectual property rights. As a general rule, the longer two businesses have coexisted, the more evidence of actual confusion will be required to convince the court that a misrepresentation occasioning damage has occurred.

In this case, it is unlikely that trade mark registrations would have altered PWS' fate. This is because the substantial period of coexistence, coupled with the limited evidence of actual confusion would have likewise undermined any claim that PWS could have sought to bring under s10(2) of the Trade Marks Act 1994.  

The full judgment, Philip Warren and Son Ltd v Lidl Great Britain Ltd [2021] EWHC 1097 (Ch), is available here.

Avid RPC Bites readers will be familiar with the future changes to the regulation of foods deemed high in fat, sugar and/or salt (HFSS). In Issue 21 and Issue 24, we reported in detail on proposals to limit the promotion and ban the online advertisement of HFSS products as part of the Government's obesity strategy. Now, with the implementation of the restrictions just under a year away (April 2022), industry lobbying appears to be in full swing.

Nutritious snack bar company, KIND has announced its intention to lobby the Government and launch a public campaign to change the classification of its nut-based products. Although KIND's focus is on providing consumers with "nutritious and delicious" snacks, its entire product offering (excluding its new almond butter breakfast bar range specifically created to avoid HFSS restrictions) would fall under the confectionary / cereal bar category and therefore be caught by the impending restrictions.

To avoid this, KIND is pushing for a change in the classification of nut-based products so that those which are predominantly made up of nuts i.e. 50% or more, will be classed as nuts and seeds and thus fall outside the scope of the HFSS restrictions. The brand claims that its own products have a nut content of 52% to 76%, which is broadly equivalent to the often recommended 'handful' of nuts and intends to use evidence from dieticians and nutritionists to bolster its argument for reclassification.

(Not so) Lucky Cat Noodle

Lucky Cat Noodle, a brand owned by A Rule of Tum, has been forced to re-brand following a trade mark complaint from celebrity chef and TV personality Gordon Ramsay. Ramsay holds a trade mark registration for 'Lucky Cat', which is registered in connection with his eponymous bar in London's Grosvenor Square. A Rule of Tum ran into difficulties when it launched a crowdfunding campaign for its pop-up ramen bar of the same name.

To avoid a legal battle, the Worcestershire based ramen noodle bar has reportedly changed its name to 'Maneki Ramen' after Maneki-Neko, the iconic beckoning Japanese cat-figurine that is believed to bring good fortune to the owner. Head chef Pete Dovaston is reportedly grateful to Gordon Ramsay for pointing out the potential infringement and says it has given the noodle bar a chance to delve into its roots. Rumour has it Chef Ramsay will even be sent a voucher for the noodle bar's new permanent restaurant set to open in June!

2023 Rugby World Cup win for Japan's Asahi Breweries

The 2019 Rugby World Cup in Japan exceeded all commercial revenue projections, mostly due to unprecedented interest from Asian brands. It is fitting then, that World Rugby has chosen major Japanese beer, spirits, soft drinks and food company, Asahi to be its global sponsor for the 2023 Rugby World Cup (the Cup).

The new partnership will see Asahi's flagship 'Super Dry' Lager become the Official Beer for the Cup, replacing Heineken, which was the 2019 tournament's Official Beer. With the Cup due to be held in France, Asahi will have to play by the French loi Évin restrictions, which regulate the advertising and marketing of alcohol products, and largely ban alcohol advertising in France. In the past, savvy marketing campaigns have circumvented these rules. For example, by replacing the word 'Guinness' in the Irish stout's popular logo with the word 'Greatness' at the Guinness Six Nations and alluding to Carlsberg in perimeter advertising which simply stated 'Probably…' in Carlsberg's traditional font and colours at Euro 2018.

Asahi expressed its honour at being the first Asian company to become a Worldwide Partner of rugby's most prestigious event, as it joined the likes of Société Générale and Mastercard in the top-tier of partners announced for the Cup. Recognising the potential for the partnership to unite nations and draw in new spectators to the sport, World Rugby chairman Bill Beaumont said, "we are delighted to be welcoming Asahi Group to the family of Worldwide Partners for Rugby World Cup 2023. Their appointment not only reflects the prestige and truly international appeal of our event, but of the power of a growing and global sport to reach and engage new audiences."

Bag to Rights – out with the plastic, in with the composting

The Co-op recently announced plans to remove plastic 'bags for life' from sale across all of its 2,600 stores, as part of its plans to end single-use plastic. Whilst the introduction of the 'bag for life' has decreased sales of single-use carrier bags by 95% since 2015, the supermarket noticed that customer habits resulted in the so-called 'bags for life' only being used once, rendering them the new single-use bag. Plus, The Co-op claims that the production of 'bags for life' actually uses more plastic than the equivalent process for conventional single-use plastic bags.

Once the current stocks of its 'bags for life' are exhausted, The Co-op plans to replace the current model with a more environmentally friendly and durable equivalent, alongside a certified compostable single-use bag. Initially launched in 1000 stores in 2018, The Co-op's compostable bags can be used in food caddy and home compost bins, giving them a sustainable second life. The supermarket estimates that the compostable bags will remove 29.5 million 'bags for life' from sale each year, saving approximately 870 tonnes of plastic.

Whilst The Co-op acknowledges that from 21 May 2021 the plastic carrier bag charge will increase from 5p to 10p and extend to all retailers, in its latest policy report (which can be found here), the supermarket argues that the measure does not go far enough. To increase transparency, it encourages the Government to require all major retailers to report on their reusable and single-use bag sales and hopes that all single-use carrier bags can be made from certified compostable materials in future.

See RPC's recent Retail Therapy article on eliminating plastic waste here for more information on current and proposed legislation.

There has bean a new discovery

With the demand for high quality coffee and carbon footprint consciousness continuing to rise globally, Nestle's shrewd scientists have used non genetically modified organism breeding to develop not one, but two new low carbon Robusta coffee bean varieties, which deliver "up to 50% higher yields per tree versus standard varieties".

In Nestle's research and development centre, experimental coffee farms are created, allowing scientists to identify the coffee trees with the most beneficial traits such as drought and disease resistance and higher bean yields. Then, new and improved coffee assortments are bred using the favourable trees and Nestle's agronomists support local farmers to grow the new variations sustainably.

According to the food and drink giant, this development could achieve up to a 30% reduction in the carbon footprint of green coffee beans by allowing farmers to grow more coffee using the same resources. The innovation is an exciting move in Nestle's bid to reduce coffee consumption's carbon footprint and is one which will ensure that farmers in regions impacted by climate change can continue to produce high quality coffee beans.

We look forward to seeing what this novel coffee breeding and Nestle's other sustainable developments have to offer as the company continues to work towards its commitment to net zero emissions by 2050.

Late Bloomer – Co-op trials selling food beyond best before date

The Co-op strikes again! As part of its 'Reducing our Foodprint' scheme, Southern Co-op has begun offering customers food which is beyond its best before date. The new anti-waste scheme will run for 12 weeks in 11 stores across the south of England and will build upon the supermarket's successful Hampshire trials in December 2019 and February 2020.

For those that may be shocked to learn of The Co-op's new scheme, according to the Food Standards Agency, products past their best before date are in fact safe to eat, although they may not be of optimum quality.

The Co-op intends to sell fresh items such as soft fruit up to two days after its best before date for 20p, whereas shelf-stable products such as pasta, rice, teas and jams will be sold up to seven days after their best before dates. The supermarket hopes the scheme will raise awareness for the long-forgotten back-of-cupboard items which are often thrown out unnecessarily and prove that certain products are still enjoyable after their best before date.

The Co-op will no doubt be mindful of the need to stay on the right side of use-by dates, following the hefty fine recently imposed on Tesco (as featured in Issue 30 of RPC Bites here). Use by dates are not to be confused with best before dates: The former stipulates the date after which it is no longer considered safe to eat food whereas the latter is an indication of quality, rather than food safety.

'Halloumi' and 'Hellim' afforded PDO status

As fans of 'Halloumi' or 'Hellim' will no doubt already know, on 12 April, the European Commission announced two new measures: The first, that the Cypriot cheese has been afforded protected status, under the EU's protected designation of origin (PDO) scheme; The second, that for the first time 'Hellim', which originates from the North Side of the island, will be allowed to cross the 'Green Line', provided that the cheese and milk used in its production meets EU animal and public health standards.

The measures mean that going forwards, neither 'Halloumi' nor 'Hellim' can be used as names for comparable cheese products that originate from outside of Cyprus. This ensures that like other PDOs (which include 'Prosecco' and 'Feta'), 'Halloumi' and 'Hellim' will act as badges of authenticity and origin. The announcement has been welcomed by Cyprus' President, Nicos Anastasiades, who remarked on Twitter that “a shield of protection is now in place”.

Historically, 'Hellim' was not allowed to cross the 'Green Line', which divides the North Side from the South Side. This meant that the product could not be shipped to the EU and that Hellim producers missed out on a lucrative market.

Many hope that the change will bridge the divide between the two halves of the country, but the North Side has already raised concerns, particularly around the need to conform to EU food and sanitary standards. Disquiet has likewise been voiced from the South Side, with some angry that the North (which is only recognised as an independent state by Turkey) has been allowed to trade with the EU. A six-month grace period has since been announced by the EU, in the hope that this will allow both sides to work through their respective concerns.

Aldi launches ‘packaging-free’ trial and clothing line amidst Colin v Cuthbert dispute

As if being embroiled in the biggest food fight in recent years wasn't enough (for those who missed issue 29 of RPC Bites (here), M&S has issued proceedings against Aldi, regarding its Cuthbert the Caterpillar cake), Aldi has announced not one but two new ventures: The first, an inaugural 'packaging-free' trial at its Ulverston store; The second, the launch of its first branded clothing range, 'Aldimania'.

Packaging trial

The 'packaging-free' trial allows customers to buy staple loose household items such as rice and pasta from a bank of dispensers at a slightly reduced price. The company estimates that the trial is set to save 130 tonnes of plastic annually once rolled out to all of its stores. Customers are, however, required to use Aldi's paper bags and cannot bring their own containers to fill with the goods. Given the production process required to make paper bags, some have commented that the initiative is less sustainable and environmentally beneficial than it may first appear.

The trial follows Aldi's commitment to halving its plastic packaging by 2025, which it claims should eliminate approximately 74,000 tonnes of plastic over five years. However, this is by no means the only trial of its kind in the grocery shop marketplace; both Waitrose and Asda have experimented with similar initiatives at select locations.

'Aldimania'

'Aldimania' is Aldi's new 'Specialbuy' collection of gender-neutral sports and loungewear. Due to hit stores this week, the collection includes hoodies, pyjamas and underwear, all emboldened with the discount supermarket's logo. The new range has been in part promoted via a billboard campaign featuring the slogan 'Aldi's Just Done It'. Many have been quick to point out the similarity with Nike's famous 'Just Do It' strapline and to question whether the sports retailer will perceive this as a threat to its intellectual property rights and follow in M&S' footsteps.

Copy-caterpillars: the dispute continues

Speaking of Colin v Cuthbert, whilst M&S' trade mark infringement claim is still in its early stages, the drama continues to unfold on social media. Shortly after proceedings were issued, Aldi took to Twitter to garner support using the hashtag #FreeCuthbert. Then, despite Cuthbert cakes having been removed from supermarket shelves at the start of the dispute, the discounter announced that it would be introducing a limited-edition version, with the proceeds of sale donated to charities, including M&S' partner charity, Macmillan Cancer Support. M&S responded to the tweet, stating that whilst it "loves a charity idea", Aldi should use its own character, Kevin the Carrot.

We will continue to monitor the case and to provide updates in subsequent issues of RPC Bites.

Tesco fined for selling out of date food

Tesco has been fined £7.5M after pleading guilty to selling food past its use by date at three of its Birmingham stores.

Birmingham City Council brought the prosecution against Tesco under the Food Safety and Hygiene (England) Regulations 2013, after food inspectors from the Environmental Health Department found three stores in and around Birmingham selling out-of-date food on numerous occasions between 2015 and 2017.

Tesco pleaded guilty at Birmingham Magistrates court to 22 offences across the three stores, which totalled 67 separate out of date items, leading to the handing down of one of the most substantial fines ever for an offence of this nature. The court heard that officers first visited stores in June 2015 after receiving a complaint from a member of the public and found 6 items on display beyond their use by date. Officers were invited to complete another check in April 2016 and found various further out of date items on display, including pork belly and flavoured milk. Then, visits to 2 other stores after a subsequent complaint found several additional offending items, including fruit with visible mould.

A spokesperson for Birmingham City Council's environmental health team said: "the purpose of the use-by date is to protect the health of the consumer. The manufacturers put the date on their products to guarantee the food is safe and ignoring this date completely undermines consumer safety".

Tesco's fate sends a warning to other food retailers to ensure that appropriate steps are taken to guarantee that their products are in date. The message is clear; when it comes to consumer safety there is no room for error and fines can be hefty.

Skinny spice not so skinny after all

A Facebook post by Not Guilty Food Co (trading as Skinny Food Co), which featured a man holding four spice mixes, each bearing the words 'Skinny Spices' has been found to breach the CAP Code rules on authorised health claims.

Not Guilty Food claimed that its products were low in sugar, fat and calories when compared with market alternatives and that the products were not actively marketed as weight loss products and were simply named after their 'Skinny Spice' trade mark.

The ASA, however, found that the ad breached the CAP Code, on the basis that customers would interpret 'Skinny Spices' as being linked with and promoting weight loss or maintenance when compared to alternative products. As such, the term 'Skinny Spices' amounted to a health claim. Under the CAP Code, only products containing ingredients that produce "the physiological effect of weight loss or maintenance" in a significant quantity can be promoted using such claims. The spices did not contain such ingredients and thus the health claims were not permitted.

For similar reasons, Not Guilty Foods were also prohibited from relying on 'Skinny Spices' being a nutritional claim as the composition of the spices would only produce a negligible nutritional benefit compared to other alternatives.

The ASA concluded that as 'Skinny Spices' would be understood as a health claim, the term could not be used to advertise products unless an authorised health claim was being made. Going forwards, use of Not Guilty Food's registered 'Skinny Spices' trade mark will only be permitted in relation to products that contain a significant quantity of substances that would result in weight loss or maintenance.

Finally, clarity on composite food products

As avid RPC Bites readers will know, we have been closely following the changing requirements for the export of composite food products from the UK to the EU and Northern Ireland (see Issue 29 and Issue 27).

To recap, 'composite food products' are food products which contain a mixture of processed products of animal origin (POAO) and plant products, for example lasagne and meat-based pizzas.

From 21 April 2021, the rules for the movement of such products changed following the introduction of the EU Animal Health Regulations. The regulations have introduced new export health certificates (EHC) for composite food products and private attestation requirements for previously exempt composite food products.

Fortunately for composite food product exporters, the new rules will be somewhat phased in. For exporters of products which already require an EHC, existing EHC's can be used until August 2021. However, for products which now require an EHC under the new rules, the relevant EHC must be produced from 21 April 2021 and for previously exempt products, private attestations will be needed from 21 April 2021. The list of exempt composite food products can be found here and includes confectionary, bread, cakes and biscuits.

Click here to access DEFRA's helpful decision tree, produced to assist exporters in deciding whether their product is a composite food product and any relevant export rules.

DO: Consider what intellectual property rights (IPR) you own or might create and how those IPR might need to be protected. 

Companies often create more IP than they expect. The main categories are:

• Trade marks: A trade mark can consist of any sign that can be represented clearly and precisely. Whilst packaging shapes, colours and even sounds are capable of protection as trade marks, they are typically comprised of signs and/or symbols. The core function of a trade mark is to allow consumers to identify the origin of a product or service and to differentiate it from those of third parties. Items commonly protected by trade marks include company and product names, logos, product packaging (including, for example, the shape of spirit bottles), and slogans. 

Trade marks are useful as they allow their owner to prevent competitors from using the same or similar marks which might confuse consumers or suggest an association between the two businesses.         

Although trade marks can be registered or unregistered, it is desirable to obtain registration as this provides certainty over when the right came into existence and avoids disputes regarding who began using an unregistered right first. It is also desirable to obtain trade mark protection at an early stage, to avoid a situation where time and expense has been invested in a brand, only for a third party to later dispute its use or to apply for registration itself. 

• Copyright: Copyright arises automatically and protects traditionally 'creative' works. Copyright will therefore usually exist in company logos and in any artwork present on product packaging or in marketing materials. Copyright also protects literary work (i.e. text), as long as it meets the test of being the author's own intellectual creation. Marketing slogans, website content and even product descriptions may therefore be capable of attracting copyright protection.

Copyright does not need to be registered, and generally lasts for 70 years from the end of the year in which its creator dies. The owner can use their copyright to prevent any unauthorised use or copying of the works. 

• Design rights: Design rights protect the appearance of more functional articles, provided they are novel. This could apply, for example, to the various parts of a spirit bottle, such as its overall shape, or just the shape of a particular feature, such as the neck. Certain design rights are also capable of protecting two dimensional products such as patterns and layouts. 

Design rights can be registered or unregistered, and allow their owners to prevent the manufacture and/or sale of lookalike products. 

• Patents: these generally protect technical "inventions", for example a new technology which allows a distillery to make products faster or using an improved process. 

The registration of a patent can be a long and expensive process, but once granted, patents provide inventors with a 20 year monopoly. 

It is therefore worth any new business considering what IP it may own or create and how best to protect it. This will also be helpful if/when that business wants to seek further investment or to fundraise, as prospective investors will take comfort in knowing that the company's IP is protected.

DO: make sure you have appropriate contractual arrangements in place to ensure that any IP created for the company (in particular, by third party contractors) belongs to it, so that you can use it and deal with it as you wish. Again prospective investors will be keen to see that these types of arrangements are in place, to avoid future disputes regarding ownership.

DO: Make sure, when developing your new brand, that its use would not infringe someone else's IPR. The main things to check, before a brand is selected, are that the proposed company name and any logo are clear and not in use by a third party, particularly one that operates in the same sector. This will help to avoid disputes and wasted costs on brands that subsequently need to be abandoned.

Equally, when producing any marketing materials, do make sure that you have appropriate permissions to use all content (e.g. stock photos, which can often be licensed online for the payment of a small fee).

DON'T: share information about your company and/or its IPR with third parties, unless that information is publicly available or you have appropriate documentation in place to protect confidentiality (e.g. a Non-Disclosure Agreement).

DON'T: assume that because materials are available online, they are free to use or copy! Be careful where you take your inspiration from.

2. What about launching new product lines? What are the key things that distilleries should be aware of?

When new trends take off, it can (understandably) be tempting to develop and launch new products as quickly as possible, to satisfy and capitalise on demand. When it comes to naming and promoting a new product, there are however various pitfalls that it can be easy to fall into. The following are most relevant to distilleries:

• Naming: When deciding on the all-important name of a product, care must be taken to ensure that it does not sound too similar to goods that are already protected. Only recently, an alcohol-free sparkling wine dubbed 'Nosecco' was required to undergo a rebrand as its name was deemed too similar to 'Prosecco', which is a protected designation of origin product. 'Low-alcohol' or 'alcohol-free' claims must also comply with Regulation (EU) No 1169/2011.
• Health claims: When preparing marketing materials and advertising their products, distilleries should be particularly wary of making health related claims, which are heavily regulated under the CAP Code. Under section 15.6, claims that either state or imply that a person's health could be affected by not consuming a drink are prohibited, as are claims which state or imply that a drink prevents, treats or cures human disease. The Advertising Standards Authority (ASA) has published detailed guidance on this, a selection of which can be viewed here and here.
• Green claims: Care should also be taken when making 'green' claims about products. The ASA released useful guidance in 2020, which highlighted the importance of being able to properly substantiate any sustainability claims. The Competition and Markets Authority (CMA) is taking a similarly robust stance, announcing that it will investigate descriptions and labels used to promote products and services claiming to be ‘eco-friendly’, and whether they could mislead consumers.
• Packaging: Under European law, no alcoholic beverage containing more than 1.2 % ABV may make health claims in the EU. Whilst EU law ceased to apply to the UK, following the expiry of the Brexit transition period, on 1 January 2021, this continues to be a relevant restriction for distilleries wishing to sell and promote their products in the Eurozone.
• Allergens: With any consumable products, it is essential that all possible allergens are identified, appropriately verified and labelled.

If distilleries are uncertain or have any questions regarding the applicable regulatory landscape, we would recommend that they seek pre-product launch legal advice.

3. Has the IP landscape changed in recent years and if so, how has this impacted brands?

One of the most significant changes to the IP landscape in recent years has been the broadening of the scope of copyright protection, through a string of EU cases. You can find some of our commentary on these cases here and here, but essentially their effect is that even more functional (as opposed to artistic) designs can now benefit from copyright protection.

The threshold for a 'work' to benefit from copyright protection is now relatively low, so it is worth being especially cautious when copying anything from the internet, even if it is not obviously an artistic work. For example, Ts & Cs may appear purely functional but may still constitute literary works protected by copyright. Similarly, the design of a functional item like a spirit bottle may now be protected by copyright as well as by design rights. This is significant because copyright protection lasts for much longer.

Also and although not strictly IP-related, many businesses will be aware of the General Data Protection Regulation or 'GDPR', which came into force in April 2016. Any business that processes customer data (including distilleries) should ensure that they understand and comply with the requirements of the GDPR, to avoid the sanctions and significant financial penalties that data breaches can carry.

4. 2020 was undeniably a very challenging year. What advice would you give distilleries on how best to move forwards?

2020 was challenging across the board but for businesses operating within, or servicing, the hospitality sector, the impact of the COVID-19 pandemic was felt particularly acutely. When bars, restaurants and pubs were forced to close for the first-time, in March 2020, many distilleries saw a significant percentage of their business dry up overnight. Whilst various relief packages were offered and emergency legislation passed, second and third lockdowns at traditionally busy times of the year dealt a heavy blow to the already strained sector.

Whilst certain factors like consumer confidence and the progress of the COVID-19 vaccination scheme are outside the control of businesses, innovation and versatility will be key components of future success. Health and wellbeing has been a huge trend in recent years and the desire to obtain and maintain a healthy mind and body has only been exacerbated by the pandemic. For the food and drink sector, this has resulted in many alcohol brands creating or adding to their low and no-alcohol offerings. A recent poll, commissioned by The Portman Group (the social responsibility and regulatory body for alcohol in the UK), found that UK consumers are embracing no and low products like never before. Of those surveyed, 62.5% reported having sampled a low or no product and a quarter regard themselves as 'semi-regular consumers'.

Year on year, consumers are also becoming increasingly ethically and environmentally conscious. To satisfy the growing demand for products that are made in a responsible and sustainable way, distilleries should consider who and where they source their ingredients, services and labour from. Cross-sector collaborations between likeminded businesses are also on the increase and distilleries should give careful thought to the image and message that both they, and those that they work with, present.

Recent events have also changed (possibly forever) the ways in which many businesses operate. For the food and drink sector, this has meant a huge surge in home delivery services (independent and through platforms like Deliveroo). In the current climate, distilleries should consider the channels through which their products are sold and any direct to customer routes that are available. 

In the post COVID-19 world, greater attention is also being paid to contractual provisions that were previously thought of as largely boilerplate and innocuous. Where new contractual arrangements are entered into or when new agreements are negotiated with key suppliers and customers, it will be important, at the outset, for the parties to consider the risk that some or all of them may be unable to perform their obligations, in the event of further lockdowns or other force majeure events. Ensuring that this risk is properly and fairly apportioned and that appropriate contingency plans are in place will help to ensure (as much as is possible) the continuance of both the contract and the parties' ability to do business with each other.   

This article first appeared in Distillers Journal Summer 2021.

Breaking News – Colin the Caterpillar v Cuthbert the Caterpillar

Just two days ago, Marks & Spencer plc (M&S) initiated High Court proceedings against Aldi in relation to the sale of Aldi's Cuthbert the Caterpillar cake. M&S argue that the substantial similarities between Aldi's product and M&S' well-loved Colin the Caterpillar cake amounts to trade mark infringement and passing off. M&S reportedly have not one but three Colin related trade marks, upon which their infringement claim is based. In support of their trade mark infringement claim, M&S contend that the discount retailer is "riding on the coat-tails" of their trade marks' reputation. Aldi are yet to respond to the claim but we note that Cuthbert the Caterpillar cakes appear to have been removed from their website. Watch this space. Further updates will be provided as the proceedings progress. Read more.

Extended responsibility for packaging producers

Set to launch in January 2024, the Extended Producer Responsibility scheme (the Scheme) will transfer the cost of dealing with packaging product waste from the public purse to the producers (and importers) of such products. According to the Packaging (Extended Producer Responsibility) Bill, producers will assume total responsibility for the collection, transportation, recycling, disposal, treatment and recovery of their products. The Bill aims to encourage producers to use less packaging and to utilise more recyclable materials in their products.

When the Scheme was first introduced in 2019, the estimated cost for packaging producers was £1.1bn. However, two years on and this has shot up to £2.7bn with retail, supermarket and packaging experts raising concerns that even this increased figure is not the true top-end cost. Initially, the Scheme was also expected to incur costs for wholesalers via the inclusion of a wholesaler obligation, but in a recent move championed by the Federation of Wholesale Distributors, the Government dropped the plans, confirming that wholesalers will continue to benefit from the current wholesale exemption.

DEFRA's consultation on the operation of the Scheme including its design, governance and enforcement is open for 10 weeks, closing on 4 June 2021 and can be accessed here. Parties across the industry are encouraged to have their say on the Scheme.

The Scheme comes hot on the heels of other Government initiatives to curb plastic usage including the deposit return scheme for drink containers (further details here), and the £200/tonne tax on plastic packaging containing less than 30% recycled material (further information here). Together, these initiatives are likely to have a significant impact on packaging as we know it. Read more.

Mountain top whisky consumption is too risky for the ASA

RR Whisky Ltd has been reprimanded by the ASA following two adverts in which its 'River Rock Whisky' was associated with mountaineering. Advert A asked, "what better way to celebrate…than with a whisky tasting at 3500ft?". Similarly, advert B questioned, "what better way to mark the launch of River Rock batch #2 than by summitting 3500 feet for a wild whisky tasting with good friends?"

The CAP Code prohibits alcohol from being linked with activities or locations in which drinking would be unsafe and adverts must not imply that any such activities were undertaken after alcohol consumption. The complainant therefore contended that RR Whisky's pairing of alcohol with a mountain setting was unsafe and/or irresponsible.

Whilst RR Whisky agreed that it had inadvertently implied that the whisky tasting referred to in the ads took place at 3500 feet, it argued that the tasting had in fact occurred in the car park after the walk so the ads did not suggest that alcohol was being consumed in a dangerous location.

Even though neither advert explicitly depicted alcohol being consumed on the mountain, the ASA considered that the combination of the imagery of people mountaineering, whisky being poured and people standing with whisky tumblers in hand along with references to 3500 feet would give a "strong impression" to consumers that the alcohol was consumed on the mountain and thus the ads were in breach of the Code.

It's back to the drawing board for RR Whisky as both ads were banned from being shown in their current form and the brand was told to ensure that any future ads do not link alcohol with activities or locations that would make its consumption unsafe. Read more.

Catch limits finally agreed for UK fish

Readers will remember that the future of the EU's access to UK fishing waters was a sticking point in the Brexit negotiations last year. Now, there has been a slight breakthrough that may ease tensions around access to fish in the North Sea.

Last month, it was announced that the tripartite negotiations between the UK, EU and Norway had reached an agreement on 2021 catch limits. The result of two months' negotiations, the agreement provides for the long-term viability and sustainable management of cod, haddock, plaice, whiting, herring and saithe (pollock) stocks.

The Government estimates the value of the agreed 2021 catch levels at £184m. The total permittable catch for all stocks bar haddock and whiting is a reduction from previously agreed limits.

This will be welcome news for businesses that rely on a reliable source of seafood, as well as to environmentalists who have expressed concern about depleting stocks of fish. North Sea cod especially has been of concern as there is huge demand for the fish and stocks have nearly collapsed in the past. The hope is that the plan's revised catch limits will prevent future stock collapse and ensure sustainable cod reserves in the future. Read more.

To Foie Gras or not to Foie Gras

Under the Animal Welfare Act 2006, it is a criminal offence to allow an animal to suffer unnecessarily, or to fail to provide for an animal's welfare. This means animals must be protected from suffering and disease and be provided with a suitable diet. Foie gras is traditionally made by force feedings ducks / geese to enlarge their livers. As a result, its production has been illegal in the UK since 2006.

That being said, luxury restaurateurs have continued to serve the delicacy by using a loophole that allows for the sale of imported foie gras, produced outside the UK. Several news outlets have recently reported that this loophole is no longer viable following the UK's withdrawal from the EU.

As such, DEFRA has confirmed that the practice of producing foie gras remains banned in the UK and the Government is in the process of considering further steps that could be taken in relation to restrictions surrounding the product. Read more.

The humble choccy biccy may be saved from EHC requirements

In issue 27 of RPC Bites (here) we discussed the possibility that certain composite food products could lose their exempt status come 21 April 2021, therefore requiring Export Health Certificates (EHC) when being exported from the UK to the EU.

Whilst we are still awaiting a concrete answer from the EU regarding which additional composite products will require EHCs from 21 April 2021, DEFRA's director general for Food, Farming, Animal and Plant Health, David Kennedy has confirmed that some shelf-stable products that do not contain meat (such as biscuits and chocolate) will escape EHC requirements. They will however be required to secure private attestations, which some critics point out can be just as onerous for manufacturers as EHCs.

Although the position remains uncertain, what we do know is that the EU is undergoing a complete overhaul of the EHC system so we should be prepared for changes to be announced any day now. Stay tuned to RPC Bites for important updates on this topic. Read more.

A win for supermarkets as GB-­NI grace periods extended

In Issue 23 of RPC Bites, we reported on the Brexit breakthrough that was the Northern Ireland Protocol. Under the Protocol, 'authorised' traders exporting from the UK to Northern Ireland were granted a 3­month grace period to comply with certification requirements for products of animal origin, composite products and plant products. A similar 6­month grace period was granted for chilled meat products.

On 3 March 2021, Brandon Lewis, Secretary of State for Northern Ireland confirmed that these grace periods will be extended to 1 October 2021, in order to "support the effective flow of goods between Great Britain and Northern Ireland." From this date, certification requirements will be introduced in 4 phases:

• Phase 1 ­ Export Health Certificates (EHC) will be necessary for fresh meat products;
• Phase 2 ­ EHCs will be required for dairy products and additional certificates for plants, seeds and wine;
• Phase 3 ­ the introduction of phytosanitary certificates for fruit and vegetables and EHCs for pet food; and
• Phase 4 ­ all remaining certification to be introduced, including for ambient and composite products.

Seemingly, this extension will apply to the composite food products that may lose their exempt status as discussed in Issue 27 of RPC Bites. However, further clarity is needed to confirm the position.

As expected, the news has been well­received by supermarkets but concerns that the extension unfairly prioritises these stores and their suppliers over hospitality supply chains have been raised.

The EU response has not been so enthusiastic. On 15 March 2021, the European Commission commenced formal legal action against the UK for allegedly breaching the substantive provisions of the Protocol and good faith obligations under the UK­EU Withdrawal Agreement. The UK has a month to respond before the EU takes stock and considers its next steps. Read more...

Is the future of Easter eggs online?

The high street is no stranger to evolution and as we pass our one­year in lockdown anniversary, further changes may be on the horizon for specialist high street food names.

Last month, via a statement on its website (here), popular British chocolatier, Thorntons announced the closure of its retail store portfolio. In a move to adapt to changing consumer habits and to combat the disruption of intermittent Covid­19 restrictions, the company will focus on growing its online presence whilst continuing to retail in supermarkets and with its high street franchise partners.

The road has been far from smooth for chocolatiers on the high street who have already had to innovate and flex to consumer demand through the opening of hybrid shops cum cafes. However, in the wake of Covid­19, with the pull of e­commerce stronger than ever, this no longer seems enough for the luxury chocolate space. Read more...

Jump on it! Mondelez acquires Grenade

An investigation by the European Commission for price fixing, as reported in Issue 25 of RPC Bites, doesn't seem to have phased Mondelez International. The company is now set to acquire a significant majority interest in sports nutrition front runner, Grenade.

The acquisition will see Mondelez diversify into the wellbeing space and with Grenade's 'Carb Killa' bars having been the best­selling product in the high protein bar section since 2016, the attraction is clear to see. Mondelez will pivot its traditional snacking focus towards the performance nutrition sector, which has seen significant growth in recent years. The confectionary giant will likely capitalise on Grenade's strong position in the e­commerce market. Grenade sells 25% of its products through online channels and as worldwide lockdowns have caused an exponential rise in online sales, Mondelez's strategic acquisition seems to have been perfectly timed.

For Grenade, the backing of Mondelez could see the home grown brand created by husband and wife duo, Alan and Juliet Barratt with a humble budget of just $700 dollars, become a global leader in sports nutrition. The Barratts will continue to run Grenade from its UK headquarters, whilst retaining a minority equity interest as Mondelez promises to "maintain the authenticity of the brand" whilst injecting "resources, support and international scale". Read more...

Environmentally friendly beer? Sign me up!

A partnership between Brewdog and a range of craft brewers (so­called 'Friends of Brewdog') will see customers receive what is being heralded as the world's first carbon­negative beer subscription box. For each box shipped, Brewdog will offset 2.5kg of CO2, plus every beer in the box will be brewed at Brewdog's carbon neutral Ellon premises.

With each box containing eight beers, half of which are Brewdog own brands and the other half guest beers, the partnership is designed to expose customers not only to a selection of Brewdog's products, but to a diverse offering of breweries and types of beer. The first box will be free for customers, so for those looking for an environmentally conscious tipple, they're perfectly entitled to try before they buy.

There is no doubt that Brewdog has established itself as an environment­first company that has ESG values at its core. Readers will remember from Issue 22 of RPC Bites that Brewdog got into trouble with the ASA for proclaiming that it was carbon­negative. The objectionable advert read, "F**K YOU CO2. BREWDOG BEER IS NOW CARBON NEGATIVE". Although Brewdog receives no points for subtlety, it received top marks in gaining B Corp certification this February. B Corp status means that Brewdog is verified as having the highest standards of social and environmental performance, transparency and accountability. The revolutionary brewer's B Impact Report can be found here. Read more...

Supreme Court loss for Asda over equal pay claims

Asda has lost one part of a gargantuan legal claim brought against it by over 44,000 individual claimants over the right to equal pay. The longstanding litigation centres around the battle by Asda store staff, to be paid the same as Asda warehouse staff.

Equal pay claims are three­pronged, addressing each of the following fundamental questions in stages:

1. Are the jobs comparable?
2. If so, are they of equal value?
3. If they are, is there are a reason why the roles should not be paid equally?

Back in 2016, an employment tribunal found that the jobs of store staff and warehouse staff were comparable. The Court of Appeal concluded likewise in 2019. Asda subsequently took the question to the Supreme Court, which last week ruled in the same way as the two lower courts. The decision means that lower­paid store staff (who are majority female), can indeed compare themselves with higher paid warehouse staff (who are majority male).

The next stage of the litigation will consider the question of whether the jobs of store and warehouse staff are of 'equal value'. Whilst this is by no means the end of the road for the parties, the Supreme Court's decision on the first limb of the claim is being described as a 'watershed' moment, which is set to have a ripple effect across the retail sector. Read more...

Low and no alcohol drinks ­ the ASA position

Following the boom in low and no alcohol sales over recent years and the increasing number of entrants into the market, the ASA has published a helpful summary of the rules in relation to the marketing of such drinks.

The ASA reminds readers that the CAP Code on Alcohol (the Code) applies not only to the advertising of alcoholic drinks (which the Code defines as a drink containing more than 0.5% alcohol by volume (ABV)), but also to the advertising of drinks which have the effect of promoting alcoholic drinks such as mixers.

It also highlights that descriptors such as 'alcohol­free' and 'low­alcohol' are subject to the official UK guidance on low­alcohol descriptors which can be foundhere. Under this guidance, 'alcohol­free' refers to drinks which have had the alcohol extracted from them to contain no more than 0.05% ABV. As such, the ASA warns of using the term to mislead consumers into thinking that a product does not contain any alcohol whatsoever and therefore recommends that ads for alcohol­free products also contain a reference to the product's exact ABV.

The temptation may be to market any drink containing less than the traditional ABV of that kind of drinks as 'low­alcohol'. However, the UK guidance defines 'low­alcohol' drinks as those containing less than 1.2% ABV. Accordingly, the ASA reminds readers that the CAP Code prohibits drinks which are stronger than 1.2% ABV from being advertised as 'low­alcohol', even if they have a lower ABV than the average drink of the same type.

Finally, tackling the naming of drinks, the ASA points out that the CAP Code prohibits advertisers from implying that a product may be legally sold if that is not the case. In other words, if a low/no alcohol drink is named after its alcoholic counterpart without meeting the criteria to be legally sold under that name, the advertising of that drink could amount to a breach of the CAP Code. Read more...

Further red tape angst on the cards for composite food products

Since the expiry of the Brexit transition period on 31 December 2020, the UK's 'third country' status has resulted in a swathe of new compliance requirements, particularly when importing and exporting foodstuffs to and from the EU. In what would be a further blow to the industry, reports indicate that additional paperwork may be required when exporting 'composite products' from 21 April 2021.

'Composite products' contain a mixture of processed products of animal origin (POAO) and plant products, for example pork pies and meat-based pizzas. Since 1 January 2021, Export Health Certificates (EHC) have been required for the export of composite products from the UK to the EU. However, certain products were exempt from this requirement including bread, cakes and biscuits containing less than 20% of processed dairy and egg products and confectionary and chocolate containing less than 50% of processed dairy and egg products.

It has recently been reported that new EU rules covering composite products will remove these exemptions from 21 April 2021, thrusting an array of composite products within EHC requirements. Currently, everyday products such as crisps, rice pudding and chocolate bars are exempt but may soon need to be signed off by a vet (at a cost of around £200 per certificate). Extracts from lengthy 'attestation' documents may also be required to verify the source of component ingredients.

As highlighted by Ian Wright, the chief executive of the Food and Drink Federation, the upshot of this will likely be a substantial increase in costs for exporters, which may make sending goods across the Channel commercially "unviable". Profit margins are likely to be squeezed and the pinch will be particularly acute when shipping composite products to Northern Ireland, where EU customs rules largely apply under the Northern Ireland Protocol. The UK Government has not yet addressed this apparent rule change, with its guidance on the export of composite products (which can be found here) still referring to exempt composite food products. We will provide updates on this topic in subsequent issues of RPC Bites. Read more...

Retailers: Government anti-obesity deadlines are near impossible

We're back with another update on products deemed high in fat, sugar and / or salt (HFSS). As noted in both Issue 21 and our new year bumper edition of RPC Bites (here and here), the Government's upcoming regulation of HFSS products is set to include a total ban on online advertising and restrictions on in-store location and volume price promotions.

Now, although supportive of the rationale behind the Government's anti-obesity drive, industry representatives are biting back at the timelines for compliance with the proposed legislation. As reported in the Grocer (here) and the FT, the British Retail Consortium (BRC) wrote to public health minister, Jo Churchill and small-business minister, Paul Scully to express industry concerns around meeting the deadline. The letter urges the Government to rethink this timeframe, estimating that adjusting UK-wide stores and adapting websites in order to comply with the proposed legislation will take at least 18 months, due to the impact of the ongoing COVID-19 pandemic.

The BRC pointed to the adjustment period previously imposed for the Soft Drinks Levy, arguing that a similar approach should be adopted here. The letter states: “We think that this hasty consultation process undermines the ability for Government and stakeholders to develop good regulation, for the sake of laying legislation next month". Keep checking subsequent issues of RPC Bites for an update on the Government's response to the industry's requests. Read more... 

Oatly arrives on UK soil as demand for milk alternatives surge

Oatly, the Swedish "Original Oat Drink Company", has announced its plans to open what it claims will be one of the largest plant-based dairy factories in the world, in Peterborough, in early 2023. Oatly has recognised the heightened demand for plant-based products in the UK and seeks to service that demand by directly manufacturing and distributing its portfolio of oat-based dairy substitute products, including oat drinks (intended to be an alternative to milk), 'Oatgurt' and ice cream, from the Peterborough factory.

The new factory will inch Oatly one step closer to its goal of constructing future-proof factories, which by 2029, will be powered entirely by renewable sources. Oatly also anticipates sourcing all its ingredients locally, reducing the carbon footprint of its manufacturing process to demonstrate that plant-based products really are a more sustainable option. The factory is expected to be able to produce a staggering 300 million litres of oat drink per year when it initially launches, with the potential to ramp this up to 450 million.

Oatly's expansion rests upon the UK market's increasing appetite for plant-based diets continuing. In the last few years, UK customers have embraced dairy alternative products, with oat, almond, coconut, soy and hazelnut milks making strides in disrupting the traditional dairy market. Read more...

Much-needed wave of support for the fish and seafood sector

The Government has expanded its Seafood Response Fund following an outcry from besieged seafood exporters who have faced financial losses due to Brexit induced delays. The enhanced fund will provide increased support by widening access to cash grants for fishing and shellfish businesses.

In January 2021, the Government created a £23M fund for seafood exporters following complications with the export of both fish and shellfish to the EU post-Brexit. As of March 2021, the Government has expanded the eligibility criteria for the fund to those businesses that have been most effected by a reduction in demand from the hospitality sector.

The scheme will provide vessel owners with a history of fishing in the winter months with a single payment to cover fixed costs for a 3-month period between January to March 2021. This payment is expected to assist with insurance, equipment hiring and port fee costs.

The sector should also profit from a £100M Government fund established to modernise fishing fleets, the fish processing industry and to revive the UK's fishing industry. This fund will be supplemental to the £32M that has been allocated to replace the EU funding that the sector would ordinarily receive each year. Further details on the Seafood Response Fund can be found by clicking the read more link. Read more...

A fresh take on groceries - Amazon Fresh brings checkout-less supermarkets to UK

Amazon has brought its first checkout-less supermarket, 'Amazon Fresh', to the UK. In an attempt to develop its presence in the UK supermarket sector, the e-commerce giant's first venture into physical retail stores outside of the US involves customers simply walking out of the supermarket with their chosen groceries.

Amazon Fresh offers your typical supermarket fare; hot and cold food to go, fresh fruit and vegetables, chilled foods and daily essentials. Customers can expect Amazon own-label groceries alongside third party branded products. Takeaway coffee machines can be found at the front of the store whilst a parcel pick-up and returns desk for goods ordered from Amazon's website is situated at the back, creating a "one-stop shop" for UK customers.

A vast amount of technology ensures that customers aren't able to walk out without paying for their goods. Firstly, shoppers must have an Amazon account (although there is no need for a Prime subscription). Once in store, Amazon tracks customers as they shop and there are hundreds of cameras and depth sensors monitoring every item picked up and placed into baskets, all of which are associated with the customer's specific Amazon account.

The Ealing and Wembley Park stores are set to be the first of many and may shake up the traditional supermarket model. Whilst established supermarkets have already experimented with checkout-less options using in-store scanners, by streamlining the process even further, Amazon offers customers an easier way to shop. However, as is the case with most new technological advances, consumers will need to balance the extent to which they are willing to share their personal data in the interests of convenience and speed of service. Read more...

A welcome ASA ruling for HFSS products

A McDonald's advert, which featured its Double Quarter-Pounder Cheeseburger was recently subject to complaints after being broadcast by ITV, on a Saturday afternoon during the airing of the film, 'Nancy Drew'. The Cheeseburger had been marked by Clearcast with an 'ex-kids' scheduling restriction, meaning that it could not feature in/around programmes targeted at children.

Despite this, the ASA found in ITV's favour, ruling that the broadcaster had not erred in running the advert. Although the ASA considered the 'ex-kids' restriction was appropriate (the BCAP Code prevents adverts for foods high in fat, sugar or salt (HFSS) from being principally directed at audiences under the age of 16), its reasoning was based on the films' true target audience. ITV explained that it had assessed the commissioning intention of the film, its content and the books on which the film was based before deciding to broadcast the advert. It relied on the Broadcaster's Audience Research Board (BARB) data to conclude that under-16s were continuously underrepresented in the film's audience. 

The ASA agreed, noting that the film's cast largely comprised of older teens and that it contained adult themes such as murder and physical attacks. Whilst the ASA acknowledged that some of the intended audience would be under 16, it emphasised the relevance of the BARB data to demonstrate that the film was also directed at adults and families who would appreciate the film's previous franchises. The ASA therefore concluded that the film was not directed at, or particularly appealing to, viewers under the age of 16.  

The ruling goes to show that the Double Quarter-Pounder Cheeseburger really is a timeless classic, especially when paired with the right movie. Read more...

Westminster - the Scotch Whisky industry is calling - please pick up 

Scottish rural economy minister, Fergus Ewing has written an open letter to the Environment Secretary, George Eustice, encouraging Westminster to intervene and support the 'decimated' Scotch Whisky industry. The once 'booming' sector is now facing catastrophe following COVID-19 related disruption, post-Brexit bureaucracy and the imposition of 25% tariffs on US imports of Scotch Whisky since October 2019. The combined impact of this 'triple threat', as Ewing describes it, has resulted in a 23% decline in the export value of Scotch Whisky, with global exports falling by more than £1.1 billion during 2020, according to reports by the Scotch Whisky Association (SWA) which can be found here. 

In his letter, Ewing urges the UK Government to address the issues facing the sector in order to restore the success of one of Scotland's most prized industries. In terms of Brexit related issues, Ewing highlights the reality for the Scotch Whisky sector:

Additional, inconsistent and expensive certification requirements for a number of EU countries, despite Scotch Whisky being a low risk product from an animal and plant health perspective; 
Significant delays to or suspension of groupage shipments due to increased complexity and paperwork issues, particularly in relation to transit procedures leading to major customs delays; and 
Complications with UK labelling of food business operator or importer details following the implementation of the Northern Ireland Protocol. 

Yesterday's Budget announcement will provide some respite for the sector as Chancellor, Rishi Sunak announced that alcohol duty will be frozen for another year. The SWA have largely welcomed the Chancellor's announcement as giving distillers "some breathing space". However, it has invited the Chancellor to produce a clear timetable for the "reform of the UK’s outdated system of alcohol taxation" and appealed for government resolution of US tariffs on Scotch Whisky, citing the risks the tariffs pose to the sector's US market share. See a summary of the Chancellor's full Budget announcement here. Read more... 

Reminder: Submit your CBD novel food applications ASAP

In one of the very first issues of RPC Bites, we reported on the Food Standards Agency's (FSA) decision to regulate the CBD industry in the UK. In January 2019, 'cannabinoids' (which include CBD products) were entered in the EU Novel food catalogue. For the UK, this culminated in the FSA's announcement last February, that companies wishing to bring CBD products to market would need to submit an application for novel food authorisation to the FSA. 

A year on and having refused industry requests to extend the deadline (see RPC Bites Issue 8 for further details), the FSA is encouraging those that need to, to submit their novel food applications sooner, rather than later. The deadline for submission is 31 March 2021 and the FSA has warned that applications will be subject to an 8-day admin check and could take up to 30 working days to be validated. 

From 1 April 2021, CBD products for which a validated novel foods application has not been made, will be prohibited from sale. Businesses that continue to sell products in spite of this risk enforcement action. Read more...

Who is right and who is just being shellfish? 

On 8 February 2021, the Environment Secretary, George Eustice, outlined to parliament the ongoing dispute between the UK and the EU over the interpretation of provisions concerning the trade of live 'bivalve molluscs', such as oysters and scallops. There is currently a ban, imposed by the EU, on UK exports of live shellfish from Class B waters, harming the interests of UK fisheries, EU restaurants and retailers that rely on such products. 

The EU has refused to grant the UK a special export health license for the export of these animals despite the UK Government writing to the European Commission to set out its objections to the ban. The UK Government argues that it has received multiple assurances, since February 2019, that trade would continue unimpeded after the end of the Brexit transition period and that the health of the shellfish could be substantiated. Despite the UK's pleas, the EU has not been swayed even with threats from businesses on both sides of the Channel.

In the meantime, the UK Government has set up a £23M compensation fund for fishers whose exports have been subject to delays caused by new paperwork requirements stemming from the UK's trade agreement with the EU. Mr Eustice claimed the delays were only temporary and that a new license system would be implemented in April 2021 - a claim that the EU has rejected. 

Negotiations between the UK Government and the European Commission remain ongoing. Read more...

The battle of the supermarkets continues but is cheaper food really the answer? 

Last year, Tesco rolled out an Aldi price-match campaign, under which the price of hundreds of items was reduced to compete with the German discounter. Sainsbury's is the latest supermarket to wade in on the action, announcing that it will cut prices on 250 essential groceries such as meat, fruit, vegetables and dairy in a bid to match Aldi. 

Sainsbury's claims this will help shoppers balance budgets whilst still being able to buy quality foods. The initiative is part of Chief Executive Simon Roberts' plan to put food 'back at the heart of the business', enabling the supermarket to invest where it matters most: to its shoppers. Sainsbury's has an existing campaign in its 'Price Lock' initiative, under which prices remain the same for at least eight weeks ensuring consistency for shoppers.  

The plan adds fuel to the fire in the ongoing battle between supermarkets to offer customers the lowest possible prices. However, a recent report by think tank Chatham House (which can be viewed here) questions the emphasis on 'cheaper food'. The report argues that this exacerbates both waste and the destruction of biodiversity and natural food production processes. Instead, it calls for an overhaul of the food system, whereby the price of food is influenced by its environmental impact and greater efforts are made by the Government to tackle poverty so that all consumers can access nutritious, sustainable produce. Read more...

Fairer dairy at last?

In Issue 18 of RPC Bites, we reported that the Department for Environment, Food & Rural Affairs (Defra) had launched a consultation into the (hotly contested) topic of how to best price milk contracts. Now, the Government has published its response to that consultation, announcing that it will develop a new statutory Code of Conduct (the Code) for the sector, which vows to 'increase fairness in the supply chain and help farmers become more competitive'. 

Whilst the details of the Code remain to be agreed between the Devolved Administrations with the assistance of industry input, the Government intends the Code to provide a guiding contractual framework for the sector and to establish minimum standards.  

The National Farmers' Union (NFU) has welcomed the announcement, highlighting that, "for too long, dairy farmers have borne far too much of the risk in the dairy supply chain and inappropriate contract terms are often at the root of the problems." However, the NFU is cautiously optimistic, stressing that this is just the beginning of the journey to fairer dairy, and encouraging the industry to collaborate with the Government to ensure a suitable Code is created.. Read more...

The driest January since records began (we're talking booze, not rain)

As has become traditional in recent years, millions of Brits began 2021 by pledging to abstain from alcohol for the month of January. 2021 was no ordinary new year though and many questioned how a national lockdown and post-2020 fatigue would affect Dry January uptake and completion. 

Statistics from YouGov, commissioned by the Portman Group - the social responsibility and regulatory body for alcohol in the UK - make for an interesting read. The figures show that the winners of Dry January were not only those consumers who stuck it out until the bitter end, but also the no/lo alcohol category. This is supported by Tesco's recent announcement that demand for no/lo spirits and wines had “rocketed”, by 50% and 40% respectively. 

Whilst we regularly comment on the success enjoyed by the no/lo sector in RPC Bites, the statistics are compelling and demonstrate just how much the industry is booming. Between 2019 - 2020, the no/lo market has seen 30% growth year-on-year: a quarter of UK drinkers are reportedly now consuming no/lo products on a semi-regular basis and almost two thirds have reportedly tried a no/lo product. 

The trend has been on the radar of the drinks industry for some time now, with many of the key players having launched no/lo product ranges with great success. The results of the YouGov poll indicate that popularity is set to continue and quite possibly, that no/lo alternatives are set to become a permanent fixture on the food and drink scene. Read more...

Complaint against Silent Pool's CBD-infused gin upheld

Silent Pool's CBD-infused gin, 'Colorado High', has been found in breach of the Portman Group's Code of Practice for the Naming, Packaging and Promotion of Alcoholic Drinks. In the first complaint of its kind about a CBD product, the industry's Independent Complaints Panel ruled that the gin breached rule 3.2(c), which prohibits associations with illegal drugs and rule 3.2(j), which states that there should be no association with 'therapeutic qualities'.

Unlike cannabis, CBD is not an illegal drug in the UK. However, the Panel concluded that the use of the word 'high' on the product's packaging, together with the 'hallucinogenic' imagery of the Colorado mountains, and the refence to 'Colorado' (one of the first US states to decriminalise recreational cannabis), created an indirect association with illicit drugs. 

The Panel also considered that the product's name, 'CBD Gin' and descriptors such as, "a sensory infusion of wellness-enhancing CBD…" were problematic due to their suggestion of therapeutic qualities. Interestingly, the Panel found that the use of CBD in the product's name alone was enough to convey therapeutic qualities, since CBD is commonly marketed as providing health benefits. Seemingly, the key takeaway is that CBD should be "viewed as an ingredient, rather than a suggestion of therapeutic or health benefits". 

Silent Pool has now found itself on the receiving end of a Retailer Alert Bulletin from the Portman Group, preventing many retailers from reordering the product in its current form from April 2021. The Portman Group has also confirmed that it is in the process of creating guidance to assist producers seeking to use CBD in alcohol products.  Read more... 

Mondelez faces price fixing allegations

Chocolate giant Mondelez is being investigated by the European Commission over price fixing concerns. The EU market allows buyers to purchase products from countries where they are cheaper and then trade them in countries where the prices are higher, the intention being to drive prices down in more expensive countries. 

The EU Commission is considering whether Mondelez may have thwarted this process by potentially engaging in the following practices:

1. Entering agreements to limit the EU Member States in which its products can be sold, including restrictions on passive sales;
2. Entering agreements to raise prices or limit volumes of its products for customers trading them across the EU; 
3. Entering agreements to prevent customers from engaging in parallel trade or acquiring products from parallel trade in exchange for compensation; 
4. Damaging sales to certain EU Member States by restricting the languages used on its packaging independently or through trader agreements; and
5. Curbing imports to certain markets by refusing to supply specific traders. 

If the allegations against Mondelez are found true, under EU competition law, the company could be fined up to 10% of its overall annual turnover which is due to be announced imminently, when its 2020 Annual Report is published. Read more...

Northern Dryland - Amazon suspends alcohol sales

E-commerce giant Amazon has stopped sales of wine, spirits and beer in Northern Ireland, citing concerns that excise duty will have to be paid twice on shipments of alcohol that are sent to Northern Ireland from the British mainland. The move comes despite reassurance from a Government spokesperson that: “goods will not be taxed twice, and we will issue new guidance clarifying the position to ensure any remaining issues are addressed.” 

The announcement came in late December, shortly after the trade deal between the UK and EU was published. In the wake of the new Brexit customs rules, the online retailer is reportedly preparing to de-list even more products, with speculation over pet foods and some over-the-counter medicines.

Amazon is not alone in voicing its fears. In January 2021, various major UK supermarkets also expressed concern regarding disruption to Northern Ireland food supplies and warned the Government that “urgent intervention” is needed. Read more...

Scotch sector unveils sustainability strategy

The Scottish Government has committed to a net-zero emission target by 2045 but the Scotch Whisky Association (SWA) has gone one step further; committing to reaching net-zero emissions across industry operations by 2040. 

The industry has already reduced its greenhouse gas emissions by a third over the past decade, and its revived strategy has a four-pronged focus, seeking to tackle climate change, using water responsibly, caring for the land and moving to a circular economy. As part of this, the SWA also intends that all of its product packaging will be reusable, recyclable, and compostable by 2025. 

SWA Chief Executive, Karen Betts, described the move as "a great example of collaboration within our industry and with other organisations in our supply chain, the energy sector and in government." 

The SWA's commitment comes hot on the heels of the Government's recent Green Distilleries Fund: a £10 million fund to help UK distilleries kick-start green innovations and reduce carbon emissions (the Government's press release can be read here). Amongst the distilleries set to receive the first round of funding are several Scottish Whisky distillers. Read more...

Absolut Vodka paving the way for sustainable alcohol bottles

Absolut Vodka has begun trialling a 57% paper and 43% recycled plastic based vodka bottle in the UK and Sweden. 2000 of the innovative bottles, which feature an outer layer of paper with a thin inner plastic layer, have been produced for trial purposes. 

If one sustainable innovation wasn't enough, the vodka brand has also just launched its limited-edition Absolut Movement bottle in the UK. The bottle is made of 60% recycled glass and features a swirl design to embody the spirit of stirring drinks together.  

As part of alcoholic beverage front runner Pernod Ricard's portfolio, Absolut is working towards achieving the group's pledge to ensure that all its packaging is 100% recyclable, compostable, reusable or bio-sourced by 2025. Read more...

PepsiCo-lab - soft drink giant joins forces with Beyond Meat

In a move that saw Beyond Meat's share price surge, the plant-based meat alternative producer has joined forces with PepsiCo to create 'The PlaneT Partnership' (the Partnership). The Partnership intends to combine Beyond Meat's plant-based prowess and PepsiCo's global marketing reach to create a range of plant-based snacks and beverages. 

Most famous for its eponymous fizzy drink, the Partnership sees PepsiCo expand its product portfolio in a nutritious and sustainable direction, having already acquired US baked fruit and veggie chip makers, Bare Snacks, in 2018. The Partnership seeks to cater for the ever-growing demand from health-conscious consumers in the US and Europe and build a more sustainable food system. 

The announcement comes at a crucial time for Beyond Meat. Despite the plant-based market gaining traction year on year and the buzz around the company's production of the "McPlant burger" (as reported in Issue 21 of RPC Bites), Beyond Meat reported a disappointing loss in the third quarter of 2020. Read more...

Honey, I breached the CAP Code

A press advertorial for Manuka Doctor claiming that its honey product could treat coughs has been found to breach the CAP Code. The ad contained text which, the ASA felt, played to the public's current health consciousness, stating that "advice published by NHS watchdog NICE and Public Health England in 2018, confirms what many of us have known for years; honey should be the first line of treatment for patients with a cough…". The ad also emphasised the anti-microbial properties in Manuka honey. 

The ad was challenged on the basis that it stated or implied that Manuka honey prevented, treated or cured human disease. Manuka Doctor denied any wrongdoing, claiming that the ad merely echoed Government advice. Furthermore, Manuka Doctor argued that a cough alone was not a disease, merely "a voluntary or involuntary act of expulsion of air from the lungs that cleared the throat and breathing passage of foreign particles". 

After seeking detailed opinions from the food industry, the ASA disagreed. On 6 January 2021, it ruled that the ad breached rule 15.6.2 of the CAP Code and reminded Manuka Doctor that advertisers are prohibited from stating or implying that a food can prevent, treat or cure human disease "in any circumstance". As a result, Manuka Doctor was ordered to remove all such claims from its advertising. Read more...

HFSS Update 1 - Promotions

As regular readers will know, the ever-changing regulatory landscape for products deemed high in fat, sugar and/or salt (HFSS) is often featured in RPC Bites. This time, we write to provide not one, but two updates: The first concerning promotions and the second concerning No/Lo alcohol products.  

On 28 December 2020, citing growing concerns over promotional offers and emphasising that the COVID-19 pandemic has highlighted the impact that obesity can have on people's health, the Government announced the following HFSS restrictions, which will apply from April 2022:

• Location restrictions at store entrances, aisle ends and checkouts, plus online equivalents such as homepages, landing pages for other food categories and basket and payment pages;
• Volume price restrictions prohibiting 'buy one get one free', '3 for 2' or similar volume price promotions; and
• A ban on free refills of sugary soft drinks in the eating-out sector.

It is important to understand that the restrictions extend beyond obvious HFSS produce; pre-packed food and drink products across several categories including breakfast cereals, yogurts and fruit juices will also be covered.

Interestingly, the restrictions will only apply to stores with a square footage of over 2,000, so smaller local and convenience type stores will not be caught. In drawing this distinction, the Government considered that larger stores would be more likely to have distinct checkout and front of store areas, as well as multiple aisles and aisle ends. Specialist HFSS retailers selling one type of HFSS food product (for example, chocolate shops), and stores with fewer than 50 employees will also be exempt. 

The Government has launched a further consultation on the enforcement of the restrictions (available here). This is set to close on 22 February 2021. Read more...

HFSS Update 2 - No/Lo alcohol products

The new restrictions on the promotion of HFSS products (as reported above) appear to contain an exemption for certain No/Lo alcohol products. Great news then, for the thriving No/Lo alcohol sector, except that the position is not as clear cut as it first seems. 

Whilst a consultation is currently ongoing, the current proposal is that drinks within the scope of the Soft Drinks Industry Levy (SDIL) will be caught by the new HFSS promotion restrictions. Where No/Lo alcohol products are concerned, drinks with 1.2% alcohol by volume (ABV) or less fall within the SDIL, subject to certain other conditions.

However, according to the consultation, the SDIL does not apply to "an alcohol replacement, like de-alcoholised beer or wine." This might initially seem straightforward but on closer examination, a crucial question arises: Are products with 1.2% ABV or less genuinely regarded as "alcohol replacements"?

The issue is further exacerbated by the consultation's reference to "de-alcoholised beer or wine". According to the Government's Low Alcohol Descriptors Guidance (available here), "de-alcoholised" refers to drinks from which the alcohol has been extracted, so that the end-product contains no more than 0.5% ABV. By contrast, the SDIL Regulations 2018 classify "alcohol substitute drinks" as soft drinks "made from an alcoholic beverage by a process of de-alcoholisation by which the alcoholic strength of the beverage is reduced to 1.2% or lower". There is an obvious disparity between the language in the SDIL Regulations and the consultation on the new restrictions. 

Further clarity is needed on the scope of the apparent No/Lo alcohol exemption. For now, the guidance seems to suggest that a drink with an ABV that has been reduced to 0.5% or less and is a direct alcohol replacement will be exempt, but that drinks with an ABV of up to 1.2% which are not direct alcohol replacements (for example, Kombucha tea) will be subject to the new restrictions.  

Further information regarding the labelling of No/Lo alcohol products and their interaction with the SDIL can be found in The Wine and Spirit Trade Association's recent "Guide on labelling low and no alcohol products designed as 'spirit drink' substitutes". A copy can be accessed here. Read more...

Brexit hits Percy Pigs

Since the Brexit transition period expired on 31 December 2020, food and drink businesses have run into difficulties at the Northern Irish border. Under the Northern Ireland Protocol, all food and drink entering Northern Ireland from Great Britain must comply with the relevant customs rules. 

This is not the only Brexit related red-tape issue businesses are facing when importing goods into Northern Ireland and the EU. Products of several large UK retailers are now subject to the complex 'rules of origin' regulations, which were agreed as part of the UK's trade deal with the EU. These regulations impose tariffs on products that are initially produced in the EU, imported into the UK and then re-exported by a UK business back into the EU. One such affected product is the M&S fan-favourite, Percy Pigs. 

Manufactured in Germany, Percy Pigs have previously been sent to the UK and then re-distributed across M&S stores in Northern Ireland. However, under the new regulations, M&S will incur certain taxes when re-exporting the popular sweets. 

This highlights that businesses with production and/or manufacturing centres in the EU Bloc will need to think about their supply routes in order to ensure continuity of supply, whilst not falling foul of the new regulations. Such businesses should carefully examine their logistic pathways to EU-based stores. Read more...

Morrisons to become the first UK supermarket with a £10 minimum wage

Morrisons has recently announced that it will pay all its staff a guaranteed minimum wage of £10 per hour. For most of its workforce, this represents an increase of 9% from the supermarket's 2020 minimum hourly wage of £9.20 and an increase of over 46% since 2014. 

Approximately 96,000 members of staff stand to gain from the pay increase. The £10 minimum wage is a 50 pence increase over the voluntary Living Wage Foundation rate. Most of the costs of the pay increase will be met by direct payroll investment and the remainder by changes to the discretionary bonus scheme. Morrisons is leading the way in increasing wages for its staff and this could be used as a marketing technique for the supermarket.  

The pay rise is subject to a vote by union members today. If passed, it remains to be seen whether competitor supermarkets will follow suit. Hot on Morrisons' heels, on 19 January 2021, Aldi announced that minimum hourly pay will increase to £9.55, for regional workers and to £11.07, for those in London. Asda, on the other hand, has stated that it does not intend to amend its hourly rates. Read more...

Food labelling - country of origin updates

New post-Brexit Government regulations require UK businesses providing food products for immediate consumption, including restaurants, pubs and public food vendors, to label any meat, fish or seafood products with its country or place of origin. The rules are also applicable if these products are being sold to a mass caterer. 

Fortunately, businesses will have until 1 October 2022 to make the required changes. The Government hopes that this long lead period will give businesses sufficient time to adapt to the changes, review their supply chains and take the necessary steps, to ensure compliance. 

Whilst at first glance it seems that these changes will largely affect distributors, they are also likely to impact the wider supply chain. For example, the seller of a food product in a restaurant will expect its suppliers to provide certainty of origin and this expectation will flow up the supply chain. Businesses should start examining their supply chains now, to identify whether such certainty can be given and to address any logistical challenges posed by the new rules. Read more...

Defra consultation on crop gene editing plans

Genetic modification has long attracted negative press. However, we could be moving one step closer to the use of genetic technologies in food production, with the Department for Environment, Food & Rural Affairs (Defra) recently announcing that it will be undertaking a three-month consultation into the regulation of gene editing. 

As is often the case when implementing innovative practices, this move has had mixed reactions. Several scientists have already provided a positive response to the consultation, identifying the potential benefits to cost and nutrition, as well as a reduction in the use of agrichemicals. Similarly, the National Farmers Union (NFU) has welcomed the launch, stating that genetic technologies could unlock substantial benefits for the UK farming sector and are "critical" to achieving the NFU's climate change net zero ambition. However, to the contrary, environmental groups have "expressed disbelief at the announcement", warning that the move could provide a backdoor for the introduction of genetically modified processes into the UK. 

Defra has explained that gene editing differs from genetic modification as it only adds DNA from the same species using natural methods, whereas genetic modification involves mixing genes from other plants. It highlights that both methods could help plants develop a resistance to pests and diseases and advance extra nutritional benefits that would otherwise take many years to achieve.

Responses to the consultation can be provided via an online survey (available here) and must be received by 17 March 2021. Read more...

Confiscation of ham sandwiches, a sign of a wider issue?

Stories of British lorry drivers having their ham sandwiches confiscated by Dutch customs officials have recently grabbed headlines. Now that the UK has officially cut ties with the EU, EU import regulations prevent certain foods from entering the union, even if they are personal items, such as those contained in a humble packed lunch. 

UK Government guidance has warned commercial drivers that in addition to requiring a negative COVID test before crossing EU borders, drivers cannot bring products of animal origin (POAO) into the EU, including meat and dairy produce. 

This is a stark and perhaps slightly absurd example of how life has changed for the UK, now that it is outside the customs union. The confiscation of ham sandwiches certainly goes to the wider issue of how both the UK and EU must understand what new restrictions on food imports and exports mean, in practice. 

Importers and exporters of POAO face a new world in which they must adhere to new requirements and find ways to innovate in order to ensure that their products can reach the desired market. The UK Government's latest guidance on transporting goods between Great Britain and the EU can be viewed here. Read more...

Northern Ireland Protocol breakthrough  

On 8 December 2020, Michael Gove confirmed (via Twitter) that the UK had reached an agreement with the EU, which resolves outstanding issues on the implementation of the Withdrawal Agreement as it relates to Ireland and Northern Ireland (NI) and the Good Friday Agreement. 

Whilst the final text is yet to be confirmed, the updated NI Protocol Command Paper and Draft Decisions of the Joint Committee are available here.

In summary: 

• Tariffs will be payable on goods moved from Great Britain (GB) to NI if they are considered 'at risk' of subsequently being moved into the EEA;
• However, food products imported to NI by an 'authorised' trader for the sole purpose of the sale of food to an end-consumer (e.g. in NI supermarkets) are not considered 'at risk' and not therefore subject to tariffs;
•  Businesses that meet the NI establishment criteria and which undertake to bring goods into NI solely for the sale to, or use by, end-consumers can apply for 'authorised' trader status;
• Goods originating in NI will not be subject to tariffs when imported into GB;
• 'Authorised' traders will benefit from a 3 month ‘grace period’ to comply with certification requirements for products of animal origin, composite products and plant products and / or a 6 month 'grace period' for chilled meats; and
• Under the 'Movement Assistance Scheme' for agri-food traders who will need to comply with SPS checks (such as Export Health Certificates), there are assurances that "the UK Government will take care of reasonable costs".

With such a short period of time now left until the transition period expires, food and drink businesses selling products in NI should prioritise registering with the Trader Support Service and the Movement Assistance Scheme (if relevant), to the extent that they have not done so already. Businesses should also consider their eligibility for 'authorised' trader status and make applications. Read more

Victory for the UK organics sector

The organic sector can breathe a sigh of relief (for now) as the EU Commission has confirmed that the EU will recognise the UK's six organic certification bodies, for 12 months after the Brexit transition period expires on 31 December 2020. This is a crucial result for the sector, which exports an estimated £225 million worth of organic produce to the EU each year. 

Whilst not the full mutual equivalency that UK producers had been hoping for, the decision certainly provides some comfort in the short-term, allowing the UK sector to continue to enjoy access for another year. In the absence of recognition, the sector risked losing its status in the EU and Northern Ireland – two of its most important markets.

Businesses so far reluctant to set the wheels in motion for the new labelling requirements for organic products exported to the EU can now do so (whilst not forgetting other EU labelling requirements – see Issue 18!) However, this isn't the end of Brexit uncertainty for the organic sector: It remains to be seen whether a deal can be reached on full mutual equivalency beyond 2021. Read more

Meal kit subscription service, Gousto, has been reprimanded by the Advertising Standards Authority (ASA) for the marketing of its Eco Chill Box. Gousto described the Eco Chill Box as "100% plastic-free" and "100% recyclable" on its website blog. However, rival recipe box service, Hello Fresh, challenged the claims, identifying them as misleading and unsubstantiated due to the low-density polyethylene plastic ice pack included in the Eco Chill Box, which can only be recycled at specific local authority facilities.

Gousto meanwhile argued that the claims were not misleading as the Eco Chill Box and the ice packs within it were discrete and therefore the composition and recyclability of the ice packs was irrelevant. The Eco Chill Box in and of itself was "100% plastic-free" and "100% recyclable" as described. 

The ASA disagreed with Gousto's explanations, ruling that the ad breached the CAP Code rules on misleading advertising, substantiation and environmental claims. The ASA took the view that consumers would interpret the Eco Chill Box as including its components, especially those which necessitate the cooling function of the box. As a result, Gousto's ads have been amended to remove the offending claims and to explain exactly how the Eco Chill Box (plastic ice pack included) can be recycled. 

Concern around 'greenwashing' is a hot topic for regulators, with the Competition and Markets Authority (CMA) launching an investigation into whether unsubstantiated claims are misleading (see our article on the topic here). In September 2020, the ASA issued another ruling on environmental claims, upholding complaints against carbon footprint claims used in an advert for Quorn Thai Wondergreens (see Issue 18 of RPC Bites). Read more

Something to wine about? EU introduces mandatory calorie labelling on wine

In August 2020, as part of its strategy to combat obesity, the UK Government announced its intention to consult on plans to provide calorie labelling on alcohol before the end of 2020 (reported in Issue 14). The Government now appears unlikely to meet this deadline.

However, in the meantime the European Parliament and Council of Ministers have voted to approve an amendment to the Common Agricultural Policy (CAP), requiring kilocalories to be displayed on all wine packaging. Whilst the implementation date is yet to be confirmed, this will mean that UK wine producers will have to include kcals on their labelling, if they wish to export their products to the EU and / or NI. Commercial decisions will therefore need to be made regarding the cost of utilising different labelling for the UK and EU markets.

Interestingly, the amendment to the CAP only covers wine. None of the reports on the UK Government's proposed consultation on alcohol labelling suggested that the scope would be so narrow.  

We will provide updates on any UK consultations on alcohol labelling in future issues of RPC Bites. Read more

Californian company receives regulatory approval for lab-grown meat

The race to produce the world's first commercially available cultured meat products has thrust Californian company Eat Just, Inc into the spotlight. Cultured meat is more commonly known as 'lab-grown meat' and refers to the cultivation of animal cells in-vitro. 

The Singaporean Food Agency has recently approved the sale of Eat Just's chicken bites, which contain cultured chicken. The product will be sold in a single restaurant at a much higher price than typical chicken, but companies worldwide will be monitoring public reaction given that over two years of testing, funding and review has gone into its development (see Issue 15 for details of KFC's collaboration on 3D printed chicken nuggets). 

Health benefits, sustainability and animal welfare have all been cited as marketing draws for cultivated products. Whilst at this stage, the production process uses a significant amount of energy, Eat Just expects this to improve once production is scaled up. Read more

Government guidance makes scotch eggs the star of the show

As the UK adjusts to the new tier system, which permits restaurants, pubs and bars to re-open in tier 1 and 2 areas, debate has erupted over what is meant by the term 'substantial meal'. Pubs in tier 2 areas cannot sell alcoholic drinks, unless they are served as part of a 'substantial meal'. 

Enterprising pubs have sought to maximise business after George Eustice's comments on the once unassuming scotch egg. On 30 November 2020, the Minister for Environment, Food and Rural Affairs told LBC radio that scotch eggs would be considered a 'substantial meal' for the purpose of serving alcohol in tier 2 areas.  

Manufacturers of scotch eggs have since seen sales soar, as have supermarkets. For pubs that do not offer restaurant services, the Minister seems to have offered a (much-welcomed) method of providing drinks to customers, whilst complying with local restrictions. Read more

• Ciara Cullen, Head of Food & Drink, RPC
• Rebekah Kendrick, Head of Brexit & EU Affairs, Wine & Spirit Trade Association
• Nicola Hetherington, Principle Policy Advisor, Brexit Confederation of British Industry
• James Martin, Director of Policy, British Chambers of Commerce
• Sally Jones, UK Trade Strategy and Brexit Leader, EY

Brexit and Beyond - preparing the food and drink sector for 1 January 2021

On 23 November 2020, we hosted a 'Brexit and Beyond' webinar. The aim of the session was to inform food and drink businesses about what they can expect from 1 January 2021 and to provide practical tips on the steps that can be taken between now and the expiry of the transition period, on 31 December 2020, to mitigate the impact of Brexit. 

We know that diaries don't always permit people to join live so the webinar was recorded and can be viewed here. 

Chaired by RPC's Ciara Cullen, Partner and Head of Food and Drink, the panel featured:

• Rebekah Kendrick, Head of Brexit at The Wine and Spirit Trade Association;
• Nicola Hetherington, Principal Policy Advisor at the Confederation of British Industry (CBI); 
• Sally Jones, Brexit and Strategy Lead at EY; and 

James Martin, Director of Policy at The British Chambers of Commerce.

Amongst others, top takeaway tips included: 

1. Supply chain: Speak to everyone in your supply chain to determine how Brexit will impact them. Even if you are well-prepared or less impacted, the same may not be true for other businesses that you deal with;
2. Finance: Consider whether temporarily shortening payment terms would assist with supply chain issues; 
3. Movement of goods: Consider which port(s) you use, whether it / they are likely to be congested and if there are alternatives; 
4. Regulatory: Ensure you are familiar with the rules that govern trade between the EU and third party countries (which the UK will become, on 1 January 2021); and  
5. Data: Ensure you have a good understanding of your business' data flows and that you have started to use and/or incorporate model clauses. Read more

Food for thought: An open letter to Boris Johnson

On 20 November 2020, the Food and Drink Federation, UK Hospitality, ISBA and the Advertising Association, together with representatives of various well-known food and drink businesses wrote an open letter to Prime Minister Boris Johnson. The letter raises concerns about the Government's proposed ban on the online advertisement of products deemed high in fat, sugar and/or salt (HFSS). We covered the proposals, in detail, in Issue 21 of RPC Bites. 

Amongst other things, the letter raises concerns regarding:

• The "impossibly short period given for responses" - the consultation opened on 10 November, for 6 weeks, and will coincide with a period when many food and drink businesses are already busy preparing for the end of the Brexit transition period; 
• The lack of clarity and apparent breadth of foods currently defined as HFSS under the existing Nutrient Profiling Model; and
• The lack of weight given to evidence submitted regarding advanced advertising targeting tools, which allow businesses to aim ads at adult audiences only.

The letter goes on to request that the Government extends the consultation deadline and meets with industry representatives to discuss the way forward. It remains to be seen how the Government will respond but we will continue to provide HFSS updates in subsequent issues of RPC Bites. Read more

On 18 November 2020, the Advertising Standards Authority (ASA) upheld complaints against BrewDog for a breach of the CAP Code in respect of an advert displayed on posters and in free newspaper, 'The Metro'. However, in the same ruling, the ASA declined to uphold complaints made against the same advert, as featured in publications, 'The Week' and 'The Economist'. 

Business Secretary tells farmers to get ready for Brexit

The Business Secretary, Alok Sharma, has written to businesses in the 'agri-food' and 'biosecurity' sectors (letter available here). The letter warns businesses of the need to "act now" to avoid disruption when the Brexit transition period ends in less than a month's time. 

The letter cites the following as 'top action' points: 

• Register online to submit Export Health Certificates (EHCs), which will be required for the export of live animals and animal products to the EU; 
• Ensure an understanding of the new documentation and procedures for the import and export of plant products from and to the EU; 
• Ensure compliance with the new food labelling requirements that will apply to food and drink products exported to the EU (as covered in Issue 18 of RPC Bites); and
• Check the latest guidance on moving goods into, out of or through Northern Ireland.    

Whilst businesses on both sides of the Channel wait with bated breath to see if further trade deals will be agreed, various steps can be taken now to mitigate the impact of Brexit, whatever the outcome of those negotiations. 

For more information on how best to use the remainder of the transition period to prepare for 1 January 2021, please feel free to view our 'Brexit and Beyond' webinar, a link to which appears above. Read more

Aches and pains for 'Joint Plus' 

On 25 November 2020, the ASA upheld a single complaint against an advert contained in a leaflet circulated by Health Solutions Ltd.

The leaflet in question promoted the 'Joint Plus' supplement and claimed "Joint Plus works for you no matter what, GUARANTEED". Other statements promised, "INCREASES flexibility", "RAPID RELIEF from inflamed joints", "ALLEVIATES muscle tightness" and "IMPROVES joint flexibility day after day". The leaflet also contained various claims about the purported health benefits of ingredients used in the product, including turmeric and devil's claw. 

The ASA found that the leaflet had implied or stated that the food supplements could prevent, treat or cure human disease, in breach of the CAP Code. The ASA also found no evidence that the health, or reduction of disease, claims were listed on the EU Register, as is required. This amounted to a further breach of the CAP Code, as well as a breach of Regulation (EC) No. 1924/ 2006. 

The ruling is an important reminder that the perils of making baseless health related claims in ads is not COVID-19 specific and that the CAP Code has long prohibited this. Further commentary on this subject can be found in our F&D blog. Read more

Tone Deaf-ra: robust criticism for the Government's sustainable farming plans

On 30 November 2020, The Department for Environmental, Food & Rural Affairs (DEFRA) unveiled its new roadmap for sustainable farming, which promises to achieve a "better, fairer farming system in England". The announcement forms part of the Government's overall plan to replace the existing EU farm subsidies regime, with a scheme that focusses on sustainability criteria. 

The proposed changes will be implemented over a seven-year period, seemingly to make adapting less onerous for farmers. Amongst other things, there will be rewards for farmers and land managers who utilise sustainable farming practices. DEFRA hopes that the plans will improve both the environment and animal health and welfare, as well as reducing carbon emissions.

Heralded as "the most significant change to farming and land management in 50 years", the plans have already received staunch criticism from some areas of the food industry. The organic certification body, Organic Farmers & Growers, has highlighted a number of "glaring holes" in the strategy, including the lack of financial detail and the absence of guidance regarding how sustainable practices should be implemented, in actuality. Read more

The popularity of plant-based products has risen sharply in the last few years as consumers are becoming more conscious about the health impact and carbon footprint of the meat and dairy products they consume. A recent report by ING has found that European retail sales of meat and dairy alternatives have grown by almost 10% per year between 2010 and 2020 and it is estimated that the plant-based alternatives food market will be worth €7.5 billion by 2025. Last month's vote by the European Parliament on the labelling of plant-based products is therefore timely. For plant-based producers, the vote raises two key issues:

1. Ban on the use of meat-related terms

The Committee on Agriculture and Rural Development proposed an amendment (no.165) to restrict the use of meat-related terms, such as "burger", "sausage" and "steak", to meat products only. The upshot of this being that plant-based products would no longer be able to use meat-related labels – for example, a veggie burger could no longer be labelled as a "burger" (instead there was some suggestion that it should be called a "veggie disc").

The rationale for the proposed ban, particularly by meat lobbyists, was that use of meat denominations for non-meat products would risk confusing consumers and that use of such terms amounts to a "cultural hijacking" of the meat industry. Opponents of the ban have disputed that there would be any significant risk of consumer confusion and have said that it would directly cut across the European Green Deal (which aims to make Europe carbon-neutral by 2050) by making it harder for consumers to choose sustainable food products.  Ultimately MEPs did not agree with the meat lobby and voted against the ban (by a vote of 379 to 284).

Interestingly, however, at a national level rules on meat-related labels are not consistent across Europe with some countries separately introducing their own bans. On 27 May 2020, the French National Assembly gave the final green light to a law which would prohibit the use of names commonly associated with animal foodstuffs for labelling and marketing products containing plant-based proteins. Producers of plant-based products will therefore need to carefully consider local laws on food labelling when exporting across the EU. It is also not clear how any such restrictions might apply to 'alternative meats' such as lab-grown meat developed from animal cells (watch out for our upcoming article on alternative meats soon!).

2. Ban on use of diary descriptors

The European Parliament has voted in favour of an amendment (no.171) which would place further restrictions on the use of dairy food labels for plant-based products. The use of dairy terms, such as "cheese", "yoghurt" and "milk", for non-dairy products is already banned within the EU, following a decision by the CJEU in 2017, however, under the new amendment, these restrictions would go one step further by also prohibiting terms that liken plant-based products to dairy, eg "yoghurt-style", "butter alternative" or "cheese substitute".

The European Parliament's vote to ban the use of dairy descriptors remains subject to the decision of the Council, however, if the amendment is adopted, producers of plant-based dairy alternatives in the EU will have to think carefully about how to label their products going forwards and avoid any dairy descriptors. Producers will also need to review their existing product lines to identify and remove any such descriptors that may fall foul of the restrictions. In practice, given the earlier ban in 2017, producers may find that many of their products are already compliant and will not require further change.

Interestingly, if the regulation is not adopted before the end of the transition period on 31 December 2020, it will not be directly effective in the UK and, therefore, the restrictions will not apply in the UK (they will, of course, still apply to UK producers exporting to the EU). This could result in a situation where the labelling rules for non-dairy products are tighter in the EU than in the UK. Producers will therefore need to consider how this might impact their labelling/packaging strategies – for example whether to diverge for different markets or maintain a consistent approach across both the EU and the UK. Ultimately, this is likely to be a question of potential benefit versus cost (and inevitable logistical difficulties!).

Whatever the outcome from the Council (and we will report back in due course), one thing seems certain – given the growing global demand for plant-based products the category is likely to continue thriving no matter what labelling restrictions are imposed.

Boris consults on online advertising ban for burgers, butter and breakfast cereals 

In Issue 14 of RPC Bites we reported that the UK Government had announced a new obesity strategy. One of the key aspects of this was a proposed ban on online advertising for foods deemed high in fat, sugar and/or salt (HFSS).  On 10 November, the Department for Health and Social Care published an open consultation (available here), which provides considerable detail on the proposals:  

Scope: the ban is set to cover all online advertisements of HFSS products. This will include paid and non-paid adverts, features on websites, social media posts, in-game / app ads and commercial text messages and emails.
Exemptions: there are limited exemptions for factual claims about products, online sales and B2B advertising.
Applicability: there appears to be potential for the rules to apply not only to advertisers themselves, but also to online platforms, requiring providers to ensure that advertising featured on their platforms complies with the rules.
Enforcement: the rules are likely to be enforced by the Advertising Standards Authority (ASA), with civil fine referrals for repeated breaches.

Whilst campaigners such as Action on Sugar welcomed the consultation, in the context of the battle against childhood obesity, many advertisers are concerned about the restrictiveness and timing of the ban. If the proposals progress to legislation, they would be the strictest rules on the online advertising of food anywhere in the world. They would also come at a time when the food and drink industry is already facing considerable challenges as a result of the COVID-19 pandemic and preparations for a no deal Brexit. 

Concerns also remain around the broad-reaching scope of the term HFSS, which is defined by reference to the Nutrient Profiling Model (NPM). As well as so-called fast-foods, HFSS also includes foods such as butter, pesto and muesli, despite widespread recognition that their consumption, in moderation, can form part of a balanced diet. The consultation specifically states that it not inviting responses as to the scope of HFSS, suggesting that the NPM is considered a settled matter for now. Read more

Guinness fails to get a head in the alcohol-free market

In Issue 20 of RPC Bites, we reported that Diageo, the owner of Guinness, was due to launch an alcohol-free version of its flagship product. 

Since then, disaster has struck and Diageo has been forced to recall its entire stock of Guinness 0.0 owing to fears of "the possible presence of mould in the products". This has meant a huge operation to recall all Guinness 0.0 from shelves and communicate the message to consumers. 

The precise cause of the contamination is unknown and has not impacted the brewer's other products. However, Guinness have stated that they will only resume production once the product "meets the highest standards of quality".

The incident serves as a timely reminder of the difficulties in producing alcohol free beverages in manufacturing facilities that have previously only been used to manufacture their alcoholic counterparts. Read more

Brexit to alter rules on exhaustion of IP rights for parallel imports into the EEA 

From 1 January 2021, a new set of rules will govern the exhaustion of IP rights (IPRs) for goods exported from the UK into the European Economic Area (EEA).  

Exhaustion of rights refers to the loss of a rightsholder's ability to control the resale of their goods, once they have been placed onto the market in a specific territory. Under existing rules, once a product has been put onto the EU market, the IPR in it are considered 'exhausted' in all member states, meaning that rightsholders cannot prevent resale within the EU.

The position will soon change for businesses that export on a parallel basis from the UK into the EEA. For those businesses, the IPR in goods placed onto the UK market will no longer be considered exhausted across the EU. The change in rules will not apply for goods exported from the EEA into the UK. 

From 1 January 2021, this means that businesses that export branded food and drink products to the EEA will need to obtain permission to continue to do so from the applicable rightsholder. Such permission is not required, under the current exhaustion regime and the change marks a considerable shift in practice. The UK IPO has published guidance on the topic (available here). Read more

Pub takeaways offer glimmer of hope 

In Issue 20 of RPC Bites, we reported on the latest restrictions imposed on restaurants, cafés and bars during "Lockdown II". 

Whilst bars and pubs are again banned from welcoming on premises customers, the UK Government has extended a (limited) lifeline, in the form of a drink specific takeaway exemption. Customers can now order a pint ahead of time and collect it from their local bar or pub. Breweries also stand to gain from the exemption, by offering drinks that consumers would be unlikely to find in supermarkets. 

The Government initially refused to consider the concept of takeaway drinks so the exemption is notable. However, as many pubs have highlighted, the income that the new measure will generate is not expected to make a tangible difference to many and further concessions will likely be needed to support hospitality venues through a second national lockdown. Read more

McDonalds to launch 'McPlant' burger in 2021 

Following a trial at certain stores in Canada, fast food giant McDonalds has announced the 2021 release of its 'McPlant' burger. The product will reportedly be produced in conjunction with market-leading plant-based burger supplier, Beyond Meat. 

The announcement follows rival Burger King's August 2019 launch of a vegan 'Whopper'. As reported in Issue 7 of RPC Bites, Burger King was forced to withdraw adverts for the product, following an ASA ruling, which noted that the plant-based pattie was grilled alongside meats and included mayonnaise. Compliance with advertising rules is one of various things that McDonalds will need to successfully navigate, if its 'McPlant' burger is to hit the sweet spot.   

There is no denying the ever-increasing demand for plant-based alternatives: Barclays Bank predicts that the market could be worth some £106billion by 2029. The desire to appeal to this growing demographic is understandable but it remains to be seen how McDonalds, a brand so synonymous with meat, will fare. Read more 

A bumper harvest for British wine

This Summer's unusual weather has spelled great news for British vineyards. 2020 is reported to have been a record-breaking year for the UK's Pinot Noir grapes - with potential alcohol levels of 14.7%. Wines of Great Britain, the industry body, welcomed the news and confirmed that it had been an excellent harvest overall. Whilst potential alcohol level is not necessarily a guarantee of top-quality wine, it is a critical indicator.  

In Issue 20 of RPC Bites, we reported that from 1 January 2021, the UK will operate its own Geographical Indication scheme, affording protection to local produce. With Protected Designations of Origin such as 'English Sparkling Wine' specifically protected in the recently agreed trade deal with Japan, the future continues to look bright for the UK's nascent wine industry. Read more 

Ethical consumerism

There has been a sharp rise in ethical spending in recent years with consumers becoming increasingly conscious of the environmental impact of their purchasing decisions. According to an 'Ethical Consumerism' report by the Co-op, last year the UK ethical consumer market was estimated to be worth £41.1bn – this shows a four-fold increase over the last 20 years. Ethical food and drink (which includes Fairtrade, organic, vegetarian, plant-based alternatives and free-range eggs) makes up the largest section of the market at £12bn. 

Why is the CMA concerned?

However, the CMA is concerned that the rising consumer demand for ethical products could increase the risk of 'greenwashing' as businesses might be incentivised to make false or misleading claims about the environmental impact of their products to try to 'cash in' on the ethical consumer market.  According to the CMA, examples of such misleading behaviour could include:

• exaggerating the positive environmental impact of a product or service;
• using complex or jargon-heavy language; or
• implying that items are eco-friendly (eg through packaging or use of logos) when they are not.

The CMA's investigation also takes places in the context of its wider Annual Plan for 2020/2021, one of the aims of which is to support the transition to a low carbon economy by, as the CMA says, "[improving] our understanding of ‘green’ claims made by sellers to consumers and, where appropriate, [making] use of our powers to correct false or misleading statements that affect consumers."  

It also follows action taken by other regulators, such as the ASA, in response to misleading green claims. Updated environmental claims guidance was published by the Committee of Advertising Practice (CAP) in June and in September the ASA upheld a complaint against the meat-substitute brand, Quorn, relating to misleading claims about the carbon footprint of its 'Thai Wondergrains' product (see further below). Within this backdrop, the CMA's investigation appears timely.

The CMA's investigation

The CMA's investigation will assess how consumer protection law can be used to deal with greenwashing and protect consumers from false or misleading environmental claims. In particular, the CMA will focus on:

• how claims about the environmental impact of products and services are made;
• whether such claims are supported by evidence;
• whether such claims influence peoples’ behaviour when purchasing such goods and services; and
• whether consumers are misled by an absence of information about the environmental impact of products and services.

The investigation will involve a ‘sweep’ of randomly-selected websites across a number of sectors (which takes place from 9 - 20 November 2020) to identify the types of misleading green claims currently being made by businesses, as well as an invitation to  consumers, businesses and other key stakeholders to share their views through a series on online questionnaires. The questionnaire for businesses addresses issues such as: (a) the types of green labelling and information currently used; (b) how businesses ensure compliance with consumer law; (c) general trends/behaviour by other businesses in the sector; and (d) what further guidance and improvements to the regulatory system businesses would like to see. The deadline for submissions is 14 December 2020.

Following its investigation, the CMA plans to issue guidance next summer 2021 setting out how businesses can promote the environmental and sustainable credentials of their products without misleading consumers and breaching consumer protection law. 

Advice for businesses

Businesses, particularly those in the ethical food and drinks sector for whom it is important to promote the sustainable features of their products, should consider responding to the CMA's request for information as a way of helping to influence future guidance and policy in this area. Businesses can also keep up to date with the CMA's investigation on the 'Misleading Environmental Claims' case page.

Separately, the CMA has made it clear that where its investigation reveals businesses that are misleading consumers it will take appropriate enforcement action. As the Quorn and other recent rulings highlight, the ASA is also clamping down on brands that mislead consumers as to the environmental benefits of their products. With this in mind, businesses should continue to ensure they comply with existing guidance and rules in relation to environmental claims – such as the Government's Green Claims Code, the CAP code (Rule 11) and any accompanying guidance notes. 

Under these rules, where businesses make environmental claims for their products, they must make sure: (a) the claim is not misleading (eg does not over-exaggerate the environmental benefit of the product or make unfair comparisons with competitors); (b) they clearly and accurately explain the basis for their green claim and how it has been measured (eg against recognised measurements or standards); and (c) that any green claim is backed up by robust, transparent and objective evidence (which itself uses the most current guidance, methods and measures and is based on generally agreed scientific evidence). As the Quorn ruling highlights, businesses that fall foul of these rules may well be required to amend their claims (for example, to make them more specific or to provide additional information) or remove their green claims altogether. It seems highly likely that the CMA will be prepared to take similar, and more stringent, enforcement action. 

Plant based 'burgers' and 'sausages' will not meat their maker

On 23 October, the European Parliament voted on a proposed amendment to the Common Agricultural Policy (CAP) which would have reserved meat-related terms such as 'steak', 'sausage', 'escalope' and 'burger' for meat products only. The amendment, first brought forward by the Committee on Agriculture and Rural Development, was supported by the meat lobby, who argued that the use of such terms, for non-meat products, risked consumer confusion about the content of meat alternatives.  Ultimately, MEPs did not agree, with 284 voting in favour of the restrictions but 379 voting against. 

The outcome however, is in stark contrast with the European Parliament's vote, on the same day, to ban the promotion of non-dairy products through the use of comparative terms such as 'milk-like' or 'cheese alternative'. The use of dairy terms per se, in connection with non-dairy products (i.e. 'almond milk'), is already banned in the EU, following a 2017 CJEU decision, in which the Court found that a risk of confusion did exist. The conflicting decisions will have left some scratching their heads but this is reportedly due to the European Commission’s ambition to tackle climate change. Part of the Commission's campaign entails encouraging the public to eat less meat and it was thought that forcing non-meat alternatives to rebrand as 'vegan discs' or 'plant-based tubes' could lead to a lower uptake of these products.

The European Parliament's vote in favour of further restrictions for dairy comparators remains subject to approval by the Council, before it becomes law. If the amendment is incorporated into the CAP, this will impact the labelling rules that apply to UK producers of vegan milk, butter and yoghurt alternatives exporting to the EU.  Whilst these rules could be revoked after Brexit, manufacturers who export to the EU market will need to comply regardless and will therefore need to decide whether using different packaging in the two territories makes commercial sense. Read more including RPC's full summary of the decision.

Lockdown II  

At 00.01 hours on Thursday 5 November, restaurants, bars and cafes were again required to close, in accordance with emergency COVID-19 legislation. For the second time this year, the hospitality industry and the wholesalers that supply it find themselves bracing for the impact of 'lockdown'.

As in March, certain financial assistance will be provided by the Government and as with the previous lockdown, hospitality businesses will be permitted to offer takeaway, click and collect or drive-thru services, subject to this being commercially viable for them. Businesses will also again be able to 'furlough' employees, with the Government paying 80% of their wages up to a maximum of £2,500 per month. 

As covered in Issue 16 of RPC Bites, the Food Standards Agency (FSA) has launched a "Here to Help" campaign, with the accompanying guide containing case studies and practical guidance for businesses on how to adapt their operations so that they can continue to trade as safely as possible during the pandemic.

Even with the re-introduction of furlough and the exemptions for off premises consumption, many in the hospitality industry are calling for additional and more targeted support from the Government. The sector has been one of the hardest hit by the pandemic to date and with Brexit and the challenges that it presents just around the corner, many feel that more needs to be done to ease the burden. Read more 

Protecting regional authenticity in a new era 

On 1 January 2021, the Brexit transition period will end and the UK will leave the EU. This will mean various changes for food and drink businesses, including a new suite of rules, which will replace the existing framework on Geographical Indications (GI). A GI is a name or sign that is used on goods and which corresponds to a specific location (for example, 'cheddar' for cheese). The GI acts as an indication of a product's source and certifies that traditional production methods have been followed. GIs also protect qualifying goods from imitation produce.

 An EU GI scheme is already in place but following Brexit, it will cease to protect UK produce. A UK scheme has therefore been devised, under which three different logos will grant GI status: 

• Protected designation of origin (PDO); 
• Protected geographical indication (PGI); and
• Traditional speciality guaranteed (TSG). 

Giving UK produce its own GI scheme will ensure that from 1 January 2021, the quality and origin of products like Welsh lamb, Melton Mowbray pork pies and Yorkshire Wensleydale will continue to have protected status. 

The recognition and enforceability of the new GI scheme overseas is in many cases, not yet confirmed, although it is expected to feature in future trade deals. Indeed, recognition of the UK's GI framework formed part of the recently agreed trade deal with Japan, which we reported on in Issue 17 of RPC Bites. Read more

Guinness becomes the latest brand to venture into the alcohol free market 

19% of the UK population is reportedly teetotal and 59% of those who consume alcohol say that they have tried a low or no alcohol product. As covered in previous issues of RPC Bites, consumer interest in 'nolo' products is booming and as such, they are seen as a target growth area for many alcohol brands.

As part of its latest suite of 'nolo' products, Diageo recently announced its plans to create an alcohol-free version of the distinctive stout, Guinness, dubbed 'Guinness 0.0'. The launch follows the success of Diageo's non-alcoholic spirit Seedlip, which was launched in 2018, as well as the alcohol-free products recently launched by beer giants Heineken and Carlsberg. Read more

Government considers legislation on food waste reporting

In 2019, the Department for Environment, Food and Rural Affairs (Defra) called for businesses to sign up to a voluntary pledge to reduce their food waste by 50%, by 2030 (against a 2015 baseline). A number of household names including Nestle, Tesco, Sainsbury's and Waitrose signed up.  

However, critics have since suggested that much more is needed, if the goal is to be achieved. Recent reports suggest that Defra is currently in talks with the food and drink industry about introducing mandatory reporting requirements. There are few concrete details regarding what this will entail at present but we will provide updates in subsequent issues of RPC Bites. Read more 

Food and drink industry offers a helping hand to those in need

MPs recently voted against extending the free school meals voucher scheme to cover the Autumn half term and Christmas school holidays. Despite the challenges posed by COVID-19 and Brexit, many businesses in the food and drink industry have themselves offered to step in and provide support to families in need. 

Morrisons has agreed to distribute 14,940 healthy lunchboxes per day to local food banks and will also encourage shoppers to donate food in stores during holiday periods. Asda meanwhile will donate almost £100,000 to its 'Community Champions' across 387 stores who will ensure that the funds are directed to support groups that provide families with food during the holidays. A host of other brands including McDonalds, Aldi, Waitrose and Iceland have also extended their support to Marcus Rashford's campaign, with Hovis recently partnering with the footballer to raise awareness of child food poverty. Read more

The Claimants produce Eagle Rare bourbon whiskey, a high-end product established in the market for almost 20 years. Eagle Rare draws its history and heritage from the well-known Buffalo Trace Distillery in Kentucky, U.S.A., where Eagle Rare is produced. Eagle Rare comes in two expressions: a 10-year-old whiskey, of which there is a deliberately limited supply, and a 17-year-old whiskey, which is even rarer and is considered to be highly desirable, amongst bourbon connoisseurs.  

The Claimants registered the words 'EAGLE RARE' as a UK trade mark (UKTM) in 1981 and as an EU trade mark (EUTM) in 2002. Both registrations are in class 33, for "whiskey" and "all non-beer alcoholic beverages, including whiskey" respectively.

The Defendants produce American Eagle bourbon whiskey at an unknown distillery in Tennessee. Launched in February 2019, American Eagle is a relatively new brand. It comes in three expressions: a 4-year-old whiskey, an 8-year-old whiskey and a 12-year-old whiskey.

In June 2018, the Defendants applied to register the words 'AMERICAN EAGLE' as a UKTM. That application was unopposed and duly proceeded to registration but when, in October 2018, the Defendants applied to register an EUTM for the same words, the Claimants filed an opposition. The application was subsequently withdrawn.

Not content to leave matters there, the Claimants applied to invalidate the Defendants' 'AMERICAN EAGLE' UKTM and issued trade mark infringement proceedings in the High Court. Infringement was alleged under the EU Trade Mark Regulation (the Regulation) on two grounds: likelihood of confusion (article 9(2)(b)) and unfair advantage and/or detriment (article 9(2)(c)). The Defendants denied the claims.

Finding

The Court held that the Defendants' use of 'AMERICAN EAGLE' infringed the Claimants' 'EAGLE RARE' trade marks, under both articles 9(2)(b) and 9(2)(c) of the Regulation.

Infringement under article 9(2)(b) of the Regulation 

In relation to a likelihood of confusion, one of the central factors was the Court's finding that a commercially significant proportion of average consumers in the bourbon whiskey market would be likely to mistakenly believe that American Eagle whiskey was produced by the same company (or group) as Eagle Rare whiskey (so-called 'indirect confusion'). This was so even though the Court accepted that the average bourbon customer would be unlikely to think that American Eagle and Eagle Rare were the same product (so-called 'direct confusion').  

Based on both parties’ expert evidence, the Court found that:

1. there are different 'tiers' of bourbon whiskey in the market, ranging from mass-market to 'super premium' products;
2. consumers in both the mass and premium bourbon markets have a notable degree of brand loyalty, but mass-market drinkers (representing around 90% of sales) are also motivated by price, and are not particularly knowledgeable; and
3. it was well-known in the spirits market that brands will often release different varieties with similar but different names (such as Gentleman Jack and Winter Jack, both under the Jack Daniels brand), indicating that those sub-brands are connected. A similar concept exists within the wine industry: When, in 2015, Champagne Louis Roederer, the producers of iconic champagne brand Cristal, pursued the producers of 'Cristalino', a similar finding of infringement was unsurprisingly made.  

Applying these factors, the Court determined that the average bourbon whiskey consumer cares about the brand they are buying and that their knowledge is sufficient to mean that they would not assume that American Eagle and Eagle Rare were the same product. However, the Court concluded that the same average consumer's knowledge was insufficient to allow them to appreciate that American Eagle and Eagle Rare were produced by different entities who were not economically connected. 

Infringement under article 9(2)(c) of the Regulation 

In relation to detriment, as the Court had found that a likelihood of (indirect) confusion existed, the Defendants' use of 'AMERICAN EAGLE' was found to have diluted the 'EAGLE RARE’ brand - We should emphasise that whilst diluting a whiskey brand is unacceptable, diluting whiskey itself can be very beneficial!

Whilst 'EAGLE RARE' was an exclusive and niche whiskey brand, the Court was also keen to reiterate the established principle that, in the context of luxury goods, a small market share does not equal a lack of brand awareness.

In relation to unfair advantage, the Court acknowledged that the Defendants might gain additional sales from being associated with the 'EAGLE RARE' brand, due to its aura, reputation, heritage and history.  However, as the Defendants were not actively intending to gain an advantage from that association and as Eagle Rare’s marketing budget was very small (around £10,000 per year), the Defendants could not be said to be “getting a free ride” or to be taking advantage of any significant financial investment made by the Claimants. This was so even though the Defendants had clearly been aware of the 'EAGLE RARE' brand before their brand launched and had been reckless as to whether 'AMERICAN EAGLE' would take advantage of 'EAGLE RARE'.

Comments

The case highlights the considerable impact that sector or product-specific practices can have on the Court’s assessment of trade mark infringement:  Here, the common practice of releasing multiple expressions of the same brand with similar and connected names.

The decision also reinforces the importance of performing clearance checks. Learning that a new brand conflicts with established rights is a far less costly discovery if it is made early on, before both time and money have been incurred in establishing a name or logo that ultimately has to be abandoned.

Sazerac Brands LLC v Liverpool Gin Distillery Ltd [2020] EWHC 2424 (Ch)

FSA updates guidance on 'Natasha's Law' 

In Issue 11 of RPC Bites, we reported that the Food Standards Agency (FSA) had issued technical guidance to assist businesses to prepare for the coming into force of The Food Information (Amendment) (England) Regulations 2019 (a.k.a. 'Natasha's Law'), on 1 October 2021. 

With one year to go, the FSA published further guidance last week, which can be viewed here. 

Changes to the law were triggered by the death of teenager Natasha Ednan-Laperouse, who suffered an allergic reaction to a Pret a Manger baguette that did not require allergen labelling under the current regime. At present, allergen information for 'prepacked for direct sale' foodstuffs (PPFDS) can be provided by any means (including verbally) but once Natasha's Law comes into force, a full ingredient list will need to be included on all product labels. The latest guidance published by the FSA allows businesses to determine how they will be affected by the forthcoming changes so that they can amend their processes and train staff accordingly. Read more 

The gourmet burger survives!

Last week, it was announced that the Boparan Restaurant Group has acquired a stake in Gourmet Burger Kitchen (GBK), saving the popular restaurant chain from administration in the wake of hostile trading conditions caused by the ongoing COVID-19 pandemic. 

Boparan will add GBK to its existing portfolio of casual dining chains, which already includes Giraffe and Ed's Easy Diner. The hospitality sector has been one of the hardest hit by the pandemic, with the recently introduced 10pm curfew and prohibition on indoor gatherings of multiple households in certain areas of the UK (including London) presenting further challenges. Whilst some will question the wisdom of investing in GBK in the current climate, Boparan's MD has reiterated the Group's belief that "quality hospitality businesses will recover in the long term as people return to eating out."

This is not the first time that Boparan has come to the rescue of an ailing restaurant chain. Earlier this year, the group acquired 31 sites operated by high-street favourite, Carluccio's. Read more

Clarification on food and drink labelling post-Brexit

On 14 October 2020, the UK Government issued much needed guidance on the food and drink labelling requirements that will apply from 1 January 2021, when the UK ceases to be a member of the EU. The note explains how food and drink producers, manufacturers, retailers and suppliers must change their labels after exit day and provides clarity regarding the provision of Food Business Operator (FBO) addresses. 

The guidance confirms that labelling on pre-packaged food and caseins intended for export must include an FBO located in either the EU or Northern Ireland (NI), or the address of the EU or NI importer. In relation to goods which are sold in Great Britain (GB), while businesses can continue to use an EU, GB or NI address for the FBO until 30 September 2022, from 1 October 2022, pre-packaged food or caseins sold in GB must include a UK address. If the FBO is not in the UK, businesses should include the address of their importer. Whilst this guidance is subject to agreement with devolved administrations and Parliamentary process, it indicates that goods sold in NI will continue to follow EU rules for labelling. Read more

Herbs to be freshly grown in a Whole Foods store near you

A partnership between Whole Foods Market and urban farming company, Infarm will see modular vertical farming units installed in Whole Foods' High Street Kensington and Fulham stores. The units will allow customers to purchase herbs and 'trendy' greens such as kale and mizuna, which are freshly grown in store with no added pesticides. 

A Tottenham-based Infarm growing centre is also set to supply freshly grown produce to a host of London Whole Foods stores. Vertical farming means that the Infarm units significantly reduce the use of traditional resources in the food supply chain by growing produce closer to where it is consumed. Infarm's cloud-based technology gathers data from the growth cycle of plants which allows the platform to improve growing environments in order to enhance yields. Whole Foods isn't the only food retailer utilising Infarm's innovative technology; the company has also secured deals with Selfridges and Marks & Spencer. Read more 

Disappointment for farmers after MPs reject amendments to the Agriculture Bill

MPs have rejected the House of Lords' latest amendments to the Agriculture Bill. Peers in the Lords sought to protect the UK farming industry post-Brexit by ensuring high standards of animal welfare and food safety rules were enshrined in UK law. Several amendments were proposed by the Lords, including a requirement for food import trade deals to comply with relevant domestic standards preventing, for example, the importation of chlorinated chicken or hormone injected beef. Limits on pesticide use and enhanced environmental protections were also mooted. 

Despite widespread support from the National Farmers Union and a number of celebrity chefs, including Jamie Oliver and Yotam Ottolenghi, the majority of MPs voted to reject the amendments. Opponents and much of the UK farming industry are urging the Government to rethink its decision and 'Back British farmers' as critics warn the move may result in lower standards for other UK food trade deals. Read more 

Cheers to the Carlsberg and Marston's merger 

In Issues 9 and 16 of RPC Bites we reported on the proposed merger between Marston's PLC and Carlsberg UK, which would see the creation of the new 'Carlsberg Marston's Brewing Company'. 

Following a referral from the European Commission due to competition concerns, an investigation was launched by the UK's Competition and Markets Authority (CMA). However, on 9 October 2020, the CMA cleared the deal and the £780M transaction can now go ahead. Read more

Quorn warned over carbon footprint reduction claims

On 30 September 2020, the Advertising Standards Authority (ASA) upheld 32 complaints against a TV ad run by Marlow Foods Ltd (trading as 'Quorn'). The ad claimed that 'Quorn Thai Wondergrains', a product launched in 2019, had a beneficial effect on climate change and could help viewers to reduce their carbon footprints. Complainants argued that the claims were insufficiently substantiated and were misleading, in breach of the UK Code of Broadcast Advertising (the BCAP Code). 

The ad, which aired in April 2020, included a voiceover which stated “I care about climate change and I love my food. So new Quorn Thai Wondergrains is a step in the right direction because it helps us reduce our carbon footprint and that’s got to be good.” On-screen text read, “Quorn Wonder Grains. Awarded Carbon Reduction Footprint certification by the Carbon Trust for the full life cycle of the product." Read more

Dismay for Subway as Irish Supreme Court rules that its sandwiches do not contain bread

On 29 September 2020, the Irish Supreme Court found that the sugar content of the 'bread' used in Subway sandwiches is so high that it falls outside the legal definition of 'bread', for the purposes of Irish VAT rules. 

The judgment is the latest instalment in a long running saga, which began life when Galway-based Subway franchisee, Brookfinders Ltd ("Brookfinders") attempted to claim a refund of taxes paid in certain months of 2004 and 2005. Under the Irish Value-Added Tax Act 1972, bread is defined as a 'staple' food and attracts a 0% VAT rate. For some time now, Brookfinders has therefore argued that VAT should not have been levied on its heated sandwiches, on the basis that they contain bread. Read more

Farming unions push for milk pricing reform 

The dairy sector has long been grappling with how best to price milk contracts. Since 2012, around 85% of British milk producers have signed up to the Dairy Contracts Voluntary Code of Practice (DCVCP). The DCVCP requires producers to agree either: (i) a price for the duration of the contract; or (ii) a discretionary pricing mechanism, which provides for at least 30 days' written notice in advance of any price reductions. 

As far back as 2016, the Department for Environment, Food & Rural Affairs (Defra) found "evidence of poor contractual relations in the dairy industry" and in 2019, the then-Minister for Agriculture, George Eustice, was quoted as saying that the DCVCP "has not worked", due to the continued imposition of opaque pricing structures by certain buyers, on producers. The fluctuations in demand for milk brought about by the COVID-19 pandemic have brought these challenges to the fore for producers. In response to this, Defra launched a further consultation, which closed on 15 September 2020. Read more

Aldi looks to further its already notable growth

At the end of last month, Aldi announced plans to invest £1.3bn in expansion - opening 100 new stores, creating 4,000 jobs and renovating a number of existing stores by the end of 2021. The statement released on its website (available here) refers to Aldi's long-term goal of operating 1,200 stores in the UK, by 2025. The announcement comes hot on the heels of Aldi's recent financial success, having achieved an 8.3% year on year increase in turnover for FYE December 2019. Read more 

Tesco pledges a 300% increase in sales of plant-based meat alternatives

On 29 September 2020, Tesco announced that it has committed to a 300% increase in the sale of plant-based meat alternatives by 2025. With costs often cited as a barrier to the success of sustainable food products, Tesco has detailed plans to achieve its target by increasing the affordability and availability of plant-based foodstuffs. The supermarket will also work to improve the visibility of plant-based products by ensuring that it offers a meat alternative for every meat product sold. As part of its pledge, Tesco has also promised transparency regarding progress, publishing the sales of plant-based proteins as a percentage of overall protein sales each year. Read more

Government announces further restrictions on restaurants and bars

On 22 September 2020 Boris Johnson addressed the House of Commons, announcing the latest measures that the UK Government is taking in an effort to slow the UK's second wave of COVID-19. The Prime Minister suggested that the latest restrictions could remain in place for 6 months. Read more

UK signs free trade agreement with Japan

As reported in Edition 15 of RPC Bites, negotiations between Japan and the UK stalled in August when UK negotiators requested greater tariff-free access for British cheeses. However, negotiations were able to move past this topic and, on 11 September, Trade Secretary Liz Truss agreed a deal 'in principle'. Read more

ASA rules against Beer52 on misleading claims

On 16 September 2020 the ASA upheld a complaint against Beer 52, finding than an offer on its website had breached the CAP Code, as it was considered to be a misleading claim. Beer52 is a monthly subscription service which also sells individual beers and multipacks of beers on a non-subscription basis. Read more

Waitrose weighs up opportunity presented by recipe boxes

In Issue 16 of RPC Bites we considered the fact that Waitrose and Ocado's partnership had come to an end. Industry sources have since reported that Waitrose is in discussions to acquire Mindful Chef, a business which delivers nutritionist-approved recipes, with dairy and gluten-free ingredients. Read more

Tesco brings in the drones

Tesco has announced that it will begin a drone delivery trial in Ireland, through a partnership with Manna - a licensed drone operator. Initially the trial will focus on delivering one or two ingredients per customer and will aim to deliver within 30 minutes of an order. Read more

CCCS Concludes Investigation Into Online Food Delivery And Virtual Kitchen Sectors in Singapore

Singapore's competition regulator, the Competition and Consumer Commission of Singapore (CCCS), has concluded its investigation into the online food delivery and virtual kitchen sectors in Singapore. The CCCS was looking at refusal by three of the main online food delivery providers in Singapore (Deliveroo, Foodpanda and GrabFood) to supply online food delivery services to F&B operators using Smart City Kitchens' virtual kitchens. Read more

Public Health England publishes voluntary guidelines on calorie reduction

On 7 September 2020, Public Health England (PHE) issued a press release encouraging the food industry to reduce excessive calories in food by as much as 20%, by 2024. Read more

Trouble brewing for Carlsberg and Marston's?

In Issue 9 of RPC Bites, we reported that pub group Marston's and Carlsberg's UK arm had announced a £780M deal that would see their respective brewing arms combine to create the new 'Carlsberg Marston's Brewing Company' (CMBC). Read more

Champagne Superno-no

In August of each year, a 'Champagne Committee' of growers and producers meets to agree an annual maximum authorised yield of grapes per hectare. Read more

Waitrose to go it alone as Ocado pairs up with M&S

To many consumers, Waitrose and Ocado have become synonymous but on 1 September 2020, the longstanding 18-year partnership officially ended. Read more

FSA launches "Here to Help" guidance for food businesses

On 13 August 2020, the Food Standards Agency (FSA) launched a new campaign entitled 'Here to Help'. Read more

What about the science? How do THC and CBD affect the human body? 

Both THC and CBD are types of cannabinoids, which interact with the human body's own internal endocannabinoid system. Discovered in the 1990s, endocannabinoids are the natural cannabis like molecules produced by the human body. Current studies suggest that the key role of the endocannabinoid system is to maintain bodily homeostasis (biological harmony in response to changes in the environment). Whilst it was originally understood that receptors were only present in the brain and nerves, scientists have since determined that they are present throughout the body (including, for example, in human skin, immune cells, heart, blood vessels, and kidneys). We also now know that the endocannabinoid system is involved in a wide variety of processes, including pain, appetite, metabolism, mood, appetite, and reproductive function. 

Why is there so much discussion about CBD products at the moment?

Until last year, CBD had seemingly slipped between the cracks of various regulatory regimes: neither a 'Controlled Drug' for the purposes of the Misuse of Drugs Act 1971 nor a 'Medicinal product' under Regulation 2 of The Human Medicines Regulations 2012. This changed in January 2019 however, when CBD was listed as a 'novel food'.

Regulation of CBD products as 'novel foods'

Under Regulation (EU) 2015/2283 a 'novel food' is any food that was not used for human consumption to a significant degree within the EU before 15 May 1997. If a food product, manufacturing method or ingredient is classified as novel, safety assessments must be undertaken before that product can be sold to consumers, to ensure that it is safe for human consumption. Until last year, CBD products were not considered novel and so could enter the market without authorisation. However, in January 2019 the legal status of CBD products changed when a new entry on cannabinoids (which include CBD) was published in the EU Novel food catalogue.

Food standards agencies across the EU have responded to the catalogue entry very differently. In Spain and Austria, CBD food and drink products have been removed from the market and cannot be sold until they receive novel foods authorisation. Germany and the UK, meanwhile, have taken a 'phased compliance' approach and have permitted CBD products that are 'already on the market' to continue to be sold, during an interim period. This period expires on 31 March 2021, by which time, all those who wish to market CBD products in the UK will need to have submitted an application for novel food authorisation to the UK's Food Standards Agency (FSA). Food and drink products that fail to meet this deadline will have to be removed from the shelves, or risk enforcement action. It is therefore imperative that marketers of CBD products use this time to ensure that the necessary authorisation is in place on or before 1 April 2021. Likewise, retailers who source CBD products from third parties should ensure that their suppliers are working towards the deadline and that they have the requisite knowledge and resources to complete the application process. 

In light of the disruption caused by the COVID-19 pandemic, the Cannabis Trade Association (CTA) asked the FSA to relax the 31 March 2021 deadline (as covered in Issue 8 of RPC Bites). The FSA refused this request, stating that it had not seen any evidence to suggest that COVID-19 had impacted businesses' ability to meet the deadline.  In response, the CTA described the FSA's approach as "baffling, unsympathetic and unaligned with all government departments at this moment of national and international crisis". 

CBD sales during 'lockdown'

Whilst retailers are facing regulatory challenges, it remains a promising time for the UK's burgeoning CBD industry. During the first four months of 2020, UK spending on CBD products exceeded £150M. If these sales volumes continue, the industry is set to hit annual revenues of £450M – up 50% from 2019. The surge is likely partly attributable to the fact that CBD is touted by many for its stress reducing properties: between 20 - 30 March 2020, almost half of the surveyed UK public reported experiencing high anxiety. In these uncertain times, the CBD market has become an unexpected beneficiary of the UK's national psyche.

Unsurprisingly, with non-essential shops shut between 24 March - 15 June 2020, the success has largely been enjoyed by online CBD retailers, rather than those who sell from bricks and mortar outlets. Whilst CBD products have been readily available online for some time now, the restrictions presented by the COVID-19 outbreak prompted some to innovate, in order to reach a wider audience.

Trip's partnership with Deliveroo  

Luxury CBD brand Trip sells a range of CBD infusions and has seen considerable recent success, with a 420% month on month increase in sales during April. In May 2020, Trip joined Deliveroo as the platform's first specialist CBD supplier. Since 20 May 2020, Trip products have been available to order via Deliveroo in London, Manchester and Leeds. With 3,000 new businesses having reportedly joined Deliveroo in March 2020 alone, Trip is the first CBD supplier to take this step but is unlikely to be the last. 

Whilst by no means a silver bullet, delivery services have provided a lifeline for retailers and consumers alike, during the 'lockdown' period. As we head into Autumn it is likely that at least some parts of the country will yet face further 'lockdowns', and therefore that the delivery trend will continue.  Many predict that some of the short-term habits adopted during 'lockdown' will become permanent and certainly, convenience is perennially popular amongst consumers. Whilst the sale of CBD products is becoming more regulated, the rewards for those businesses that can successfully navigate the novel foods regime, would appear to be plentiful. 

If you would like further information on obtaining authorisation under the novel foods regime, do feel free to contact a member of our Food & Drink Group. 

Traffic light food labelling system under review

The Department of Health & Social Care (DHSC) has announced a UK-wide call for views and evidence on Front of Pack Nutrition Labels ("FOPNL"), for food and drink products. Read more

Beef over red meat's supermarket shelf-life

Issued in 2008 and clarified in 2017, current FSA guidelines (which can be viewed here) state that the shelf-life of vacuum and gas-packed chilled red meats sold in the UK must not exceed 10 days, unless an extension can be justified. Read more

KFC crafting meat products

KFC is developing the first ever lab-made 'chicken' nugget, in partnership with Moscow-based company, 3D Printing Solutions. The project, entitled 'Meat of the Future', will involve the development of an additive printing technique and will generate a product that is comprised of 80% plant-based materials and 20% bio-cells, but which still mimics the taste and texture of chicken. Read more

Stilted by Stilton

The negotiation of a post-Brexit trade deal between the UK and Japan has reportedly stalled over an unlikely sticking point - Stilton cheese. The two nations have recently been in talks and were thought to be close to finalising a deal, but a desire to boost the UK's cheese exports appears to have resulted in an impasse. Read more

HK Government imposes further social distancing measures, including closure of all restaurants

On 27 July 2020, the Hong Kong Government announced further social distancing measures in response to the 'third wave' of the COVID-19 pandemic, in Hong Kong. Read more

UK Government unveils new obesity strategy

In Issue 13 of RPC Bites, we reported that, following the identification of obesity as one of the major COVID-19 risk factors, the UK Government was expected to introduce enhanced regulations for foods deemed high in fat, sugar and/or salt (HFSS Foods). On 27 July, in conjunction with the launch of its 'Better Health' campaign, the Government did just this. Read more

'Fit Kitchen' trade mark valid and infringed says the IPEC

On 29 July, Fit Kitchen Limited (FKL) won its case for trade mark infringement and passing off against Scratch Meals Limited (SML). Both FKL and SML provide healthy pre-prepared meals: FKL via an online subscription site and SML through the manufacture and sale to supermarkets. FKL's products are sold under a logo containing the words 'Fit Kitchen', which has been protected as a UK trade mark since August 2016. Between December 2016 - November 2019, SML also sold products under the sign 'Fit Kitchen'. FKL therefore issued proceedings for trade mark infringement and passing off. SML denied the allegations and counterclaimed, seeking revocation of FKL's trade mark on grounds of bad faith. Read more

10 billion calories of chocolate to be removed from the UK market

Hot on the heels of the Government's new obesity measures, Mondelēz International, one of the world's largest snack and confectionary companies, has announced plans that will reportedly remove 10 billion calories from the UK market each year. Read more

Ritter Sport v Milka - getting square about German trade marks

If you have ever visited a German supermarket, you will probably be familiar with the square-shaped Ritter Sport chocolate bar (if not, see here). The shape has been protected by a German national trade mark since 1993. On 23 July, a 10-year legal battle between Ritter Sport and Milka, over the validity of the trade mark culminated in a ruling by Germany's Supreme Court (the Bundesgerichtshof (BGH)), which upholds Ritter Sport's registration. Read more

Is Asda back on the market?

Walmart has reportedly recommenced talks to sell part of its stake in Asda, in a deal that could see the UK supermarket giant valued at around £7bn. The news comes just over a year after the Competition and Markets Authority blocked a merger between Asda and Sainsbury's, over fears that it would raise prices in supermarket stores, online and at petrol pumps. Read more

Mini-budget offers some relief for food and drink retailers

The hospitality sector has been one of the hardest hit by the COVID-19 outbreak. Whilst many businesses have attempted to innovate and adapt, for an industry that is so reliant on face to face interaction, the enforced closure of stores and social distancing have both taken their toll. 

Has Boris Johnson done a U-turn on 'junk food'

Concerns regarding the rise in obesity levels are nothing new. For years now, a range of high-profile campaigns have encouraged the UK public to maintain a 'healthy weight'. However, following the identification of obesity as one of the major COVID-19 risk factors, it is rumoured that the UK Government may be about to launch a new offensive, specifically targeting 'junk food'. Read more

Paper-based spirit bottle unveiled

With consumers increasingly interested in the environmental credentials of packaging, Diageo has announced that it will be launching the first paper-based spirits bottle in early 2021. The bottle will be used for the Johnnie Walker brand of Scotch Whisky and will be made from 'sustainably-sourced' wood pulp, using no plastic. The announcement is part of a broader trend within the industry, with Frugalpac having launched a paper wine bottle, Carlsberg piloting a wooden beer bottle and other international brands understood to be developing their own environmentally friendly packaging.

Aldi extends immediate payment terms until the end of 2020, for small suppliers

Last week, Aldi's MD, Julie Ashfield reportedly wrote to the company's small suppliers to confirm that their invoices will continue to be paid immediately (i.e. on presentation) until the end of the year. The terms apply to all suppliers with a turnover of up to £1M, of which, Aldi is reported to have over a thousand. The announcement will be welcomed by smaller businesses, many of whom will typically find themselves in a considerably weaker negotiating position than the entities that they supply, leaving them potentially vulnerable to the imposition of onerous contract terms. 

UK Government seeks EU deal on food crossing from Northern Ireland 

 At a House of Lords scrutiny committee on 8 July 2020, George Eustice, Secretary of State for the Department for Environment, Food and Rural Affairs (DEFRA) answered questions regarding the agrifoods implications of the 'Northern Ireland Protocol'. He spoke about how DEFRA was in talks with both its Northern Irish counterpart and the EU regarding how disruptions to agrifoods crossing the Northern Ireland (NI) / Republic of Ireland (ROI) border could be minimised. Mr Eustice commented that this was important in circumstances where, amongst other things, 35% of milk produced in NI is exported to the ROI.

The cut in the VAT rate, from 20% to 5%, will take effect from this Wednesday (15th July) and will last until 12th January 2021.

As always seems to be the case with VAT on food & drink in particular, these temporary VAT cuts are likely to throw up some surprising and anomalous results.

Food and drink

From 15th July, for 6 months, supplies of food and non-alcoholic drinks sold for on-premises consumption will attract the reduced 5% VAT rate. It's important to know what is meant by "premises". This will cover restaurants, cafes and pubs and include areas with tables and chairs on the pavement or concourse adjacent to the premises, or other areas designated for the exclusive use of the establishment. It will also extend to shared 'food courts' in shopping centres.

Ordinarily, these VAT-registered businesses are required to charge VAT at the standard rate of 20% on food and drink consumed on the premises. From 15th July, for 6 months, they will only need to charge VAT at 5%.

Importantly, the VAT cut will not extend to alcoholic drinks. So, a thirst-quenching gin & tonic, bought in a pub or restaurant, will seemingly attract a 20% VAT rate on the gin and a 5% VAT rate on the tonic.

VAT-registered businesses will also be able, from 15th July, to apply the reduced 5% VAT rate to supplies of hot takeaway food and hot takeaway non-alcoholic drinks.

Cold takeaway food and drink will remain zero-rated for VAT purposes (save for the likes of potato crisps, sweets, and beverages such as bottled water and soft drinks, which are always subject to 20% VAT).

Accommodation

Supplies of hotel accommodation, holiday accommodation, pitches for caravans and tents (and supplies of facilities provided in connection to such pitches) will be subject to the reduced 5% rate of VAT for the same 6-month period.

Admissions to attractions

The reduced (5%) VAT rate will apply to admission fees to the following, when not eligible for the cultural VAT exemption:

• theatres
• circuses
• fairs
• amusement parks
• concerts
• museums
• zoos
• cinemas
• exhibitions
• similar cultural events and facilities

The temporary reduced rate will also apply to goods when supplied as part of (but which are "incidental to" the admission fee). For example, an "incidental" supply of food and drink in conjunction with admission to a brewery tour, or the supply of a brochure or book in conjunction with entry to an exhibition, would be eligible for the temporary 5% VAT rate.

Specific examples given in published HMRC guidance include planetariums, botanical gardens, studio tours and factory tours.

The reduced VAT rate will not apply to admission to sporting events.

If admission to an attraction is already covered by the VAT "cultural" exemption then the supply will of course continue to be exempt for VAT purposes.

Supplies that 'straddle' the temporary reduced rate

A VAT-registered business may receive payment or issue an invoice before 15th July for a supply eligible for the new reduced VAT rate and that takes place on or after 15th July. In such cases the business may charge VAT at the new, reduced, VAT rate and issue a credit note.

French wine producer, Les Grands Chais de France (LGC), has lost its appeal against the decision to uphold the opposition of its trade mark application for "Nosecco", in class 32, for "non-alcoholic wines". Nosecco is an alcohol-free sparkling wine, which LGC launched at the 2017 London Wine Fair. Read more

The data protection implications of NHS Test and Trace for restaurants, cafes, pubs and bars

Many food and drink retailers in England reopened their doors on 4 July. To assist with NHS Test and Trace (if it is required), the UK Government has recommended that businesses keep a temporary record of customers and visitors for 21 days. This raises data protection questions for establishments, many of whom will become data controllers overnight. Read more

Cheers to that - $100M global drinks fund launched

Diageo, the owner of various major drinks brands including Smirnoff, Baileys and Guinness, has announced the launch of a $100m global fund, dubbed 'Raising the Bar'. The aim of the fund is to ease the financial pressure that the COVID-19 outbreak has caused, by allowing pubs and bars in various cities across the world, to acquire technology, equipment and other resources that are needed to implement social distancing measures. If successful, the fund will be mutually beneficial, in the sense that business for the hospitality sector should in turn mean business for Diageo.  

Along with others, Diageo has called on the Government to offer rescue packages to the industry. As reported in previous issues of RPC Bites, similar measures have been implemented for both the fishing and dairy sectors. With the Government already paying huge sums of money under particularly its furlough scheme, it remains to be seen whether relief for the hospitality sector will be forthcoming, particularly with many venues now allowed to reopen.  

The ASA's top tips on "how not to hash up"

As reported in Issue 9 of RPC Bites, sales of Cannabidiol (or 'CBD') products have boomed in recent years. This trend has only gained popularity during lockdown: during the first four months of 2020 alone, UK spending on CBD products exceeded £150M. With this in mind, on 26 June, the ASA published a tip sheet for marketers seeking to advertise CBD products. Read more

Poor conditions responsible for the spread of COVID-19 across the meat industry 

In recent weeks, there have been a number of high profile COVID-19 outbreaks at food factories: 200 at a chicken processing plant in Anglesey (which only employs 500, in total) and various other reported cases. A similar phenomenon wreaked havoc amongst meat packing plants in the US. The outbreaks have been widely attributed to the nature of factories and their production lines, which make it very difficult for staff (who typically operate in close quarters) to practice social distancing. Read more

In Issue 7 of RPC Bites, we reported that the CMA had cleared a £6.2 billion merger between Just Eat and Takeaway.com. Not one to rest on its laurels, Just Eat announced earlier this month that it has agreed to acquire Chicago-based delivery service Grubhub, in a deal worth £5.8 billion. Read more

The Anti-Social Club

On 23 June, the UK Government confirmed that pubs, bars, cafes and restaurants will be allowed to re-open on 4 July. Rumours that this would happen have been circling for some time and in anticipation, the hospitality sector has been busy adapting operations to prepare for a new socially distanced way of working. Read more

Aldi gets its claws into the "hard seltzer" market

In recent years, "hard seltzers" have achieved considerable success in the US. A relative new-comer on the drinks scene, a "hard seltzer" is a low-calorie, low-carb alcoholic beverage, made from sparkling water, alcohol and often fruit flavouring. Read more

Is chlorinated chicken back on the menu? 

Last week, the UK began its second round of negotiations with the US for a post-Brexit trade deal. As the US has repeatedly made clear, one of its key priorities in the negotiations is achieving increased market access, so that US agricultural products, which are currently banned, can be sold in the UK.

FSA publishes updated allergen guidance to reflect changes to labelling laws

The Food Information (Amendment) (England) Regulations 2019 (Regulations) (a.k.a. "Natasha's Law") are due to come into force on 1 October 2021. The Regulations will require businesses to include full ingredient labelling on all "pre-packed for direct sale" foodstuffs (PPDS) and to emphasise any allergens that are listed. The term PPDS refers to food that is packed before being sold by the same food business to end consumers. It covers food that is sold from both permanent establishments (i.e. bricks and mortar outlets) and temporary and/or movable premises (such as market stalls and food trucks). Read more

I trade with a land down under

The UK Government has published its strategy and goals for a UK-Australia free trade agreement. Part of this strategy includes removing all tariffs from UK exports, in a bid to improve competitiveness.  This would make trade with Australia cheaper and easier, with consumers being the primary beneficiaries. Read more

However, a host of recently upheld ASA complaints serve as a timely reminder that advertisements must not exploit audience fears and/or mislead consumers into buying products. In this regard, the ASA has warned businesses to "think very carefully" before making direct or implied claims about COVID-19. The regulator has also issued a comprehensive guidance note, two industry wide Enforcement Notices and has even established a specific forum, for COVID-19 related complaints.

Rulings and ASA Guidance

In Issue 10 of RPC Bites, we reported on the ASA's ruling on adverts for "Revival Shots", which contained COVID-19 related claims. Here, we look at three other recent rulings.

Easy Shopping 4 Home Ltd

This 4 March 2020 ruling concerned Easy Shopping's Amazon listing for a "Coronavirus Anti Corona Virus Vented Face Mask 3M Disposable Respirator, FFP3, Valve, 8835 (1)”. The listing appeared at a time when there was widespread news coverage regarding the outbreak of COVID-19 and a small number of confirmed cases in the UK.

For these reasons, the ASA concluded that the wording would lead consumers to believe that the mask could help them to protect themselves from becoming infected with COVID-19, despite the fact that this was contrary to the then-current recommendations of Public Health England. In breach of the CAP Code, the listing was therefore found to be "misleading, irresponsible and likely to cause fear without justifiable reason".

Cosmetic Medical Advice UK Ltd t/a Dr Rita Rakus Clinic

In this 22 April 2020 ruling, the ASA upheld a complaint regarding two adverts for an intravenous drip. The first ad included a claim that "Boosting your cellular NAD+ levels and sirtuin activity may therefore be a good way to boost your immune system and protect yourself from viral infections". The second contained the words “Dr Rita Rakus clinic is a medical clinic! We carefuly[sic] monitor Government and The World Health Organisation advice and at the moment only one thing is very clear! Strong Immune System is key …".

The ASA concluded that the ads breached the CAP Code, as they implied that the drip could prevent people from contracting COVID-19. This was compounded by the fact that they were posted shortly after the WHO declared a pandemic and contained references to "viral infections", "boosting" the immune system and Government / WHO advice. Another issue was that in a separate breach of the CAP Code, the ads contained medicinal claims for unlicensed products.

This ruling also prompted an industry-wide Enforcement Notice to be issued, in conjunction with the Medicines and Healthcare Products Regulatory Agency (MHRA), prohibiting advertisers of IV drips from stating or implying that they can help to prevent or treat COVID-19. The Enforcement Notice confirmed that the ASA would be undertaking targeted enforcement using monitoring technology to quickly identify and take action against non-compliant advertisers in this area (including possible referrals to the MHRA). On 28 May 2020, a second Enforcement Notice was issued, this time concerning the advertisement of vitamin shots, following an upheld adjudication against SkinSpaceUK (see below).

PCK SKIN (Manchester) Ltd t/a SkinSpaceUK

Another ASA ruling, this time from 13 May 2020, concerned an advert which promoted medicines and claimed "ITS [sic] TIME TO BOOST YOUR IMMUNITY! IN THE FIGHT AGAINST VIRUSES! BOOK IN FOR YOUR VITAMIN D & B12 SHOTS! SUPPORTS YOUR IMMUNE SYSTEM, LUNG FUNCTION AND AIDS FASTER RECOVERY FROM ILLNESS & VIRUSES!".

The advert took the form of a promotional email, which had been sent to a customer subscription list during the COVID-19 outbreak. As such, the ASA determined that consumers were likely to understand that "VIRUSES" included coronavirus and to conclude that the promoted vitamin shots were an effective means of preventing or treating COVID-19.

The ASA has ruled that all adverts listed above must not appear again.

ASA Guidance Note

In March 2020 and presumably in response to cases such as these, the ASA issued specific guidance on advertising responsibly during the COVID-19 outbreak.

In the guidance, the ASA reiterated that:

• for medicines and medical devices, claims regarding the prevention, treatment and/or cure of infection can only be made for products that are licenced medicines or appropriately marked medical devices;
• for alternative and/or complimentary therapies, there must be very robust clinical trial evidence, which proves that the products work; and
• for foodstuffs and food supplements, the CAP Code contains specific rules, which limit the claims that can legitimately be made. These rules again exclude claims regarding the prevention, treatment and/or cure of human disease.

The ASA has even set up a new report form for use in connection with complaints that specifically concern COVID-19 advertisements and has stated that its "primary aim during the pandemic is to protect the public by continuing to take action against ads promoting ‘cures’ or ‘guaranteed protection’ from the virus".

Comment

The rulings and related Enforcement Notices send a definitive message to advertisers: Unfounded COVID-19 claims will not be tolerated. This hard-line stance is unsurprising and is consistent with what we have come to expect from the regulator, particularly in circumstances where public health is concerned.

Whilst there has been an (un)healthy dose of marketers getting it wrong in the post COVID-19 world, it is worth noting that the CAP Code itself remains unchanged. With this, plus an awareness of the ASA's particularly sensitivity around COVID-19 advertisements in mind, most businesses can hope to successfully navigate the pitfalls. 

Court ruling prevents Nestlé from serving up its "Incredible Burger" 

Following success in the US, Impossible Foods (IF) decided to launch its plant-based "Impossible Burger" in Europe. In February 2019, IF registered an EU trade mark (EUTM) for the product name.  

ASA ruling reaffirms that food and drink adverts must not claim to cure COVID-19

On 7 May 2020, the ASA issued its ruling on Instagram and Facebook adverts posted by Revival Drinks Ltd, promoting a product styled as "Revival Shots". Read more

The future of pubs

In Issue 9 of RPC Bites, we reported on some of the changes that high street food and drink retailers may look to implement, as the lockdown eases. In this issue, we have focussed on pubs, a popular feature of villages, towns and cities alike, which have been sorely missed by many in recent months.

Additional support for dairy farmers 

In Issue 7 of RPC Bites, we reported on the Government's decision to relax competition rules for dairy farmers, to address supply chain pressures that the COVID-19 outbreak has created. Some industry representatives were critical of the measures, believing that they did not go far enough. It seems someone was listening as the Government has recently announced further support. Read more

The ASA rules that Skinny Sauce advertising claims must be removed

Businesses are continually seeking new ways to cater for the growing demand for healthy food and drink choices. However, a recent ruling by the ASA serves as an important reminder that in doing so, consumers must not be misled. Read more

Extension of restrictions in Hong Kong for bars and restaurants

In Issue 8 of RPC Bites, we reported on the relaxation of some social distancing restrictions in Hong Kong, with amendments to the relevant regulations resulting in restaurants and bars reopening.  However, this was still subject to numerous conditions and restrictions - for example, bars could allow no more than 4 people per table, restaurants, no more than 8 and there had to be a distance of at least 1.5m between tables. Read more

Deliveroo and Trip pairing marks the platform's first specialist CBD listing 

CBD (or Cannabidiol, to give it its full name) has been one of the biggest food and drink trends in recent years. An array of products including drinks, oils, infusions, baked goods and confectionary are now available on high streets across the UK. With claims that CBD produce can reduce stress and anxiety, aid sleep and provide pain relief, the popularity is understandable, particularly in the wake of the COVID-19 outbreak. Read more

A busy month for the Carlsberg Group

On 22 May 2020, UK pub group Marston's and Carlsberg's UK arm announced a £780M merger, which will see their respective brewing arms combine to create the new Carlsberg Marston's Brewing Company. As part of the deal, Carlsberg will have the right to supply Marston's 1,600 pubs and Marston's will gain a much needed £273M cash injection. Reactions to the news have been mixed, with some viewing the move as a smart, cost-saving exercise and others concerned that it could limit consumer choice. The deal follows the acquisition of Fuller's' brewing business by Asahi in January 2019 and Greene King's sale of its pub portfolio and brewing arm to CKA, for £2.7B, last summer.

The future of the UK high street

On 25 May 2020, the UK Government announced that "contingent on progress in the fight against coronavirus" and subject to compliance with social distancing and prescribed hygiene standards, all non-essential retailers will be allowed to reopen in England from 15 June 2020. Whilst some businesses were hoping to resume trading from 1 June, the news will nevertheless provide much-needed light at the end of what, for many, will feel like a very long tunnel.

Plant based egg alternative to hit stores in June

Relative newcomer, Alternative Foods, made its debut selling vegan cakes under its "Oggs" brand and has been shortlisted for a number of the Grocer's Gold Awards 2020.

Restaurant chain Black Sheep's Covid-19 Playbook an international success 

With many restrictions imposed on restaurants in Hong Kong, but no mandatory closures, restaurant chain Black Sheep launched a best-practice manual for remaining open during the Covid-19 outbreak. The playbook sets out measures and practices that the restaurant and hospitality industry should implement, in order to protect both staff and customers whilst remaining open. There are 12 core values for restaurants to adopt, including leadership and consistency. Some of the measures are obvious, such as mandating frequent hand washing and other hygiene measures. Others include team organisation, by eliminating travel by team members between restaurants and implementing a split-team schedule. With many countries starting to relax restrictions and others hoping to do so soon, restaurants in particular will need to adapt to a new normal that includes social distancing and greater awareness of issues of hygiene from consumers. Following publication on its website, Black Sheep's Playbook has been used around the world, not only in restaurants but across hotels, fashion, retail and the aviation industry, and is looking to set the standard going forward. Read more

In a recent decision, the UK Employment Tribunal has even recognised that 'ethical veganism' may (in some circumstances) amount to a philosophical belief, which constitutes a 'protected characteristic' under the Equality Act 2010.  It is therefore no surprise that food and drink businesses across the UK have increasingly sought to cater for this growing market.

One name that would not traditionally be associated with veganism is Burger King. But in January 2020, Burger King dipped its toe in the vegan market and launched the 'Rebel Whopper'.

Advertising for the product:

• described the Rebel Whopper as Burger King's "first plant-based burger";
• stated that the Rebel Whopper was "100% whopper. No Beef"; and
• said that it was "Powered by the vegetarian butcher".

In addition, the Burger King logo was positioned alongside the 'Vegetarian Butcher' logo (which supplied the burgers) in various promotional materials.

The issue? Unfortunately for eager vegans wanting to try the new burger, the Rebel Whopper was cooked alongside meat products and was served with an egg-based mayonnaise. This prompted ten complaints to the Advertising Standards Authority (ASA) that the burger's advertising had misleadingly given the impression that it was vegan and vegetarian friendly, when in fact, this was not the case.

The Ruling

The complaints were upheld by the ASA (the full ruling can be viewed here). Burger King had included a disclaimer in the small print of various adverts, which explained that the Rebel Whopper was cooked alongside meat products. However, the ASA considered that the wording was not sufficiently prominent to displace the overall impression that the burger was vegan / vegetarian friendly. The ASA also ruled that the statements (above), the presence of the 'Vegetarian Butcher' logo, the adverts' green colour palette and the fact that the Rebel Whopper had been released to coincide with Veganuary had the cumulative effect of suggesting that it did not contain any beef or other animal by-products. The ads were therefore considered misleading and in breach of rules 3.1 and 3.3 of the CAP Code. As such, the ASA ruled that the ads "must not appear again in their current form".

Comment

As the number of people adhering to specific diets (whether vegan, organic, gluten free or otherwise) continues to rise, the correlating increase in the options offered by food and drinks businesses to cater for those preferences will be welcomed by consumers. However, it is important that businesses ensure that their manufacturing and cooking processes meet applicable conditions before describing their products as suitable for a particular diet. Many dietary terms have specific industry and legal meanings – for example, there are strict rules around describing a product as organic. Where such rules apply, brands should ensure compliance to avoid complaints and/or reputational issues.

Products that are tailored towards specific dietary requirements also often command a premium price. In the case of Burger King's Rebel Whopper, it was reportedly priced at £6.99, compared with £6.49 for the traditional Whopper. This, combined with the clear health and ethical consequences of mislabelling products, will likely mean that the ASA continues to take a robust approach to the regulation of advertisements, which state that food and/or drink products are suitable for a certain diet.