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RPC Bites #43 – Colin and Cuthbert - friends again? The ASA reprimands Oatly and Lipton Ice Tea over green claims and calorie labelling coming soon

Published on 10 February 2022

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!!

Colin and Cuthbert - friends again?

M&S and Aldi's copy-caterpillar dispute took social media (and the High Court) by storm last year, after M&S issued proceedings for trade mark infringement and passing off (as featured in Issue 29 of RPC Bites). 9 months on, High Court records show that the claim has been withdrawn, after the supermarkets reached a confidential settlement on 5 November 2021.

Although Cuthbert is still available to buy on Aldi's website, a spokesperson for M&S confirmed that the retailer is happy with the result: "the objective of the claim was to protect the IP in our Colin the Caterpillar cake and we are very pleased with the outcome." A spokesperson for Aldi however had this to say: "Cuthbert is free and looking forward to seeing all his fans again very soon!", causing many to wonder if a new-look Cuthbert will soon be launched.

Colin v Cuthbert may be over, but as reported in our New Year Bumper Issue, the retailers are still at loggerheads in relation to their respective festive light-up gin bottles. We're closely monitoring the litigation and will provide updates, as matters progress, in future issues of RPC Bites.

Oatly fails to substantiate four green claims made in TV and social media ads

The ASA has upheld complaints against dairy alternative giant, Oatly, in relation to adverts containing green claims that ran on television and social media. The ads focused on the environmental impact of dairy and meat products. Although Oatly provided evidence to support its claims, the ASA found that it had failed to substantiate four out of five claims, as follows:

Claim 1: "Oatly generates 73% less CO2e vs. milk." The ASA considered that consumers would understand this claim to mean that all Oatly products generated 73% less CO2e when, in fact, the evidence provided only concerned Oatly's Barista edition oat drink;

Claim 2: “The dairy and meat industries emit more CO2e than all the world’s planes, trains, cars, boats etc., combined." Oatly referred to greenhouse gas emissions reports in support of this claim. However, the ASA took exception to the fact that whilst the assessment of the environmental impact of the meat and dairy industry took account of full product life cycles, the transport assessment only accounted for parts of it;

Claim 3: “Today, more than 25% of the world's greenhouse gases are generated by the food industry, and meat and dairy account for more than half of that." This was found to be misleading as consumers would understand it to relate to meat and dairy only. However, the evidence submitted by Oatly also incorporated the egg and aquaculture industries; and

Claim 4:Climate experts say cutting dairy and meat products from our diets is the single biggest lifestyle change we can make to reduce our environmental impact." By relying on the opinion of just one climate expert, the ASA found that Oatly had overstated the view that the evidence supported.

Oatly was however successful in substantiating one claim:

Claim 5:If everyone in the world adopted a vegan diet, it would reduce food’s annual greenhouse emissions by 6.6bn metric tons (a 49% reduction)." In support of this, Oatly successfully pointed to a comprehensive review, which consolidated data relating to the environmental impact of moving from traditional diets to vegan diets.

The ASA's ruling represents a deepening regulatory focus on green claims in the food and drink sector. A detailed note on this subject is available on our Retail Therapy blog, here.

Calorie labelling - just two months to go!

On 6 April 2022, the new Calorie Labelling Regulations (the "Regulations") will come into force. From then onwards, all 'out of home' food and drink operators in England with over 250 employees will have to provide the calorie content per portion size of all food prepared for immediate consumption. The Regulations will apply to a broad category of retailers from restaurants and takeaways to cinemas and hotels.

A calorie label and a statement reading, “adults need around 2,000 kcal a day” must be displayed “at the point at which the consumer chooses what food to buy” (i.e. on restaurant menus). A similar requirement will apply to 'prepacked for direct sale' items. Some foods are exempt, including items that have featured on the menu for less than 30 days.

Where food is sold online or through an app, the required information will need to be provided at the point of both order and delivery. To ensure compliance with the Regulations, cooperation will therefore be required at various points within the supply chain.

Espresso’s second shot at UNESCO

Italy is submitting a second application to UNESCO for 'acclaimed heritage' status in relation to the country's much loved espresso coffee. Italy hopes that espresso, which is thought to be drunk by 90% of Italians each day, will be added to UNESCO's 'List of Intangible Cultural Heritage'. The list recognises notable cultural heritages across the globe, from food to music and dance. Last year, UNESCO rejected two similar applications; one filed on behalf of the whole of Italy and another, from the Region of Campania.

If successful, cafes and restaurants serving espresso and even bars serving espresso martinis may need to change the name of their drinks, unless they have the expertise, certified coffee blends and equipment to make an authentic espresso coffee. According to the Italian Espresso Institute, this is a “hazel-brown to dark brown” caffeinated brew with a froth sitting on top that is “uniform and persistent for at least 120 seconds from the time the coffee has been dispensed without stirring”.

Lipton Ice Tea also caught out by the ASA

For some time now, we have been reporting on the ASA's focus on tackling misleading green claims. As well as Oatly, Pepsi was also on the wrong end of an ASA ruling in January 2022, in relation to an ad which claimed that its Lipton Ice Tea bottle was "100% RECYCLED PLASTIC*". The claim was qualified with an asterisk, which referred consumers to a line of small text at the bottom of the poster reading: “bottle made from recycled plastic, excludes cap and label”. The complainant challenged whether the “100% RECYCLED*” claim misleadingly implied that the entire bottle was made from 100% recycled plastic when, in fact, the cap and label were not.

Pepsi acknowledged that some consumers might have assumed that the claim related to the entire bottle, but sought to rely on its qualification wording to show that the ad was not misleading. The ASA however, did not agree. It upheld the complaint, partly due to the size and placement of the qualification wording (which could be easily overlooked), but also due to the overall impression created by the claim. The ASA concluded that the qualification wording was insufficient to counter that overall impression and thus, the claim was misleading.