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RPC Bites #49 – Kellogg's HFSS legal action fails, Ellie Goulding's seltzer falls foul of ASA rules and is the 'alcohol free' threshold about to change

Published on 29 July 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!!

We're all going on a summer holiday! - This will be the last issue of RPC Bites this side of summer, but we'll be back, with a bumper edition, in September. See you on the other side!

'Alcohol-free' threshold set to rise

According to reports in the Times, a relaxation of alcohol by volume (ABV) limits is "awaiting sign-off by the next prime minister." Currently, for a beer to be classed as 'alcohol free' it must contain less than 0.05% ABV while 'low alcohol' beverages must contain less than 1.2%. Under the new rules, these figures will rise to between 0.5% - 1% for 'alcohol free' drinks and to 3% for 'low alcohol' drinks. With the news still hot off the press, we will provide updates in subsequent issues of RPC Bites as further details are revealed.

Court rejects Kellogg's legal challenge of HFSS restrictions

In Issue 47 of RPC Bites, we reported that Kellogg's had launched judicial review proceedings against the Government. The litigation concerned the legality of the way in which HFSS legislation was introduced and the Nutrient Profiling Model (NPM), which is used to determine the products that fall within the scope of upcoming HFSS regulations.

Two months on, Kellogg's legal challenge has been dismissed. The breakfast food giant's primary argument was that cereals were unfairly brought within scope of the restrictions, which failed to account for the fact that most consumers eat cereal with milk. Milk, Kellogg's argued, changes the nutritional value of cereal as consumed, therefore bringing it outside the scope of HFSS restrictions.

However, in a judgment handed down on 4 July 2022, the High Court disagreed. It found that the nutritional profile of breakfast cereals cannot be assessed once reconstituted with milk, as cereals do not come with preparation instructions stating that they should be consumed with milk and can be eaten in their dry form. The court also rejected Kellogg's additional arguments that HFSS legislation was "ultra vires" (i.e. beyond the powers of the Food Safety Act 1990).

Although Kellogg's has unsurprisingly expressed disappointment with the ruling, it reportedly does not intend to appeal the decision. This may be a result of the backlash Kellogg's faced after bringing the action, with many health campaigners criticising the household name's decision to publicly disrupt the Government's anti-obesity strategy.

Ellie Scoulding - Seltzer ad criticised by the ASA

Seltzer brand, Served Drinks, in which singer-songwriter Ellie Goulding acquired a significant stake last year, has been reprimanded by the ASA for various social media ads sponsored by the singer.

The offending ads which referred to seltzers containing only 57 calories and 0g sugar were posted on Ellie Goulding's Facebook page with comments such as: “If you’re like me, you love a drink but also enjoy an active lifestyle. My delicious alcoholic sparkling water is the best of both worlds”, and “You guys know I love a drink, but I also really care about my well-being.

The ASA found that the references to "57 cals" and "0g sugar" were, in fact, nutrition claims as, when read in the context of the ads as a whole, the suggestion was that the seltzers had beneficial nutritional properties given their reduced calorie and sugar content. As we have previously reported in various issues of RPC Bites, 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'.

The ASA also held that by implying a relationship between the seltzers and health, the claims "If you’re like me, you love a drink but also enjoy an active lifestyle. My delicious alcoholic sparkling water is the best of both worlds” and “You guys know I love a drink, but I also really care about my well-being…" were health claims which cannot be made under any circumstances for alcoholic drinks (CAP Code Rule 18.17).

In relation to a marketing email sent by Served Drinks, which read: "is dry January becoming a little dry? There’s no reason you can’t enjoy a drink without setting you back! Our drinks only have 57 calories, 0g Sugar and are 4% ABV and are the perfect choice for a tipple without all the guilt”, the ASA found there was an implication that drinking could overcome boredom, in a further breach of the CAP Code (Rule 18.6).

As such, the ads must not be run again in their offending form.

EUIPO consider Absolut's vodka bottle distinctive enough to be trade marked

In a judgment handed down on 3 June 2022, the EUIPO's Fifth Board of Appeal (the Board) found that Absolut's vodka bottle was distinctive enough to be registered as a trade mark under Article 7(1)(b) of Regulation (EU) 2017/1001 (the Regulation).

In a first instance decision handed down in 2021, an EUIPO examiner had initially refused Absolut's application on the basis that the elements of its bottle design were not sufficiently outstanding or eye-catching so as to create an overall impression which significantly departed from market norms.

Absolut appealed the decision, arguing that the distinctive nature of the bottle was apparent when considering its fanciful and unusual elements as a whole, including (amongst others): (i) the unusual copper bottle closure; (ii) the innovative maze-like surface structure on the bottle sides; and (iii) the 'optical effect' created by the copper-coloured back relief shining through the bottle.

Focusing on the colour scheme of the bottle, the Board concluded that the entirely copper colour of the bottle's back, along with a distinctive front label and unusual copper-coloured neck foil meant that the design departed significantly from other alcohol bottles and was therefore sufficiently striking to allow consumers to recall the design of the bottle.

Accordingly, the first instance decision was overturned and Absolut's design achieved registration as a 3D mark, pursuant to Article 7(1)(b) of the Regulation. Three dimensional shapes are notoriously difficult to register so this is a real coup for the drinks giant.

Mars makes moves in the Metaverse

Mars is aspiring to bring its products into the metaverse, having applied to trade mark its M&M brand in the US, for 'NFTs and digital tokens, virtual candy and snacks'. Similar filings for software that authenticates, stores, and transmits NFTs and digital collectibles have also been made.

Kraft Foods also recently filed several US trade mark applications in relation to various digital assets for its food brands, specifically Kraft, Jell-O, Kool-Aid, Velveeta, Lunchables, Oscar Meyer, and Philadelphia. The applications outline plans for the creation of virtual restaurants which allow users to earn points and currency to purchase items in person or online. Similarly, Wendy's opened a metaverse restaurant called 'Sunrise City' and has decided to expand the initiative following its success.

With momentum behind NFTs and virtual consumer experiences and interactions seemingly building by the day, watch this space for further developments!

Kellogg's gets in a mud-dle over "misleading" health claims

In another blow for Kellogg's this month, the brand has found itself in hot water with youth campaign group Bite Back, over allegedly misleading health claims relating to its "Müd" product.

Challenging what they perceived to be “manipulative marketing tactics” utilised by big players in the food industry, activists hand delivered a year's supply of mud to a Kellogg's factory in Manchester, which they branded as "high in fibre, a great source of minerals and low in fat". The rationale underpinning the stunt is that more transparency and honesty is needed to stop misleading health claims in relation to HFSS products.

Research published by the campaign group found that 8 in 10 young people believe cereal bars to be healthy, despite the fact that 81% of such products currently receive a red traffic light label for health content. The group suggest such information is derived from "misleading" health claims of brands such as Kellogg's, whose products are advertised (for example) as being full of "added goodness", without mentioning their high sugar and fat content.

Bite Back's protest comes in the aftermath of the Government's New Food Strategy announcement which, as reported in Issue 48 of RPC Bites, has already come under fire for its failure (amongst other things) to impose taxes on HFSS products.



RPC are the exclusive legal sponsor of the Low2NoBev show, taking place at Olympia 26th-28th September. Low2NoBev is the only dedicated trade show for low and no-alcohol drinks, one of the fastest growing categories in the drinks sector. For more information and to register please visit the Low2NoBev website.