RPC Bites

RPC Bites #21 – burgers, Brexit and bans for online ads

20 November 2020. Published by Ciara Cullen, Partner and Ben Mark, Partner

Welcome to RPC Bites. Our aim in the next 2 minutes is to provide you with a flavour of some key legal, regulatory and commercial developments in the Food & Drink sector over the last fortnight… with the occasional bit of industry gossip thrown in for good measure. Enjoy!!

Access the full edition of RPC Bites here 

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