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RPC Bites New Year Bumper Issue– M&S v Aldi (again), Bitcoin and pizza is not a welcome combo for the ASA and a green start to 2022 for Morrisons and McDonalds

Published on 19 January 2022

Happy New Year and welcome to our New Year Bumper Edition of 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!

The Food Beverage and Cosmetics Law Review 2021 

We are delighted to announce that RPC has authored the UK chapter of the very first Food, Beverage and Cosmetics Law Review. 

The chapter offers a high-level overview of the legal and regulatory framework for both industries, as well as trends to look out for in 2022. 

It's the perfect guide for new entrants to the UK market, as well as start-ups. It’s also ideal for anyone wanting a high-level refresher of the key issues and themes to consider when operating in the UK's thriving and highly competitive food, drink and cosmetic industries. 

The chapter can be accessed here.  

M&S v Aldi (round 2) - another IP dispute be-gins 

M&S has issued proceedings against Aldi for the second time in 12 months. Hot on the heels of the ongoing 'Colin v Cuthbert' dispute (as covered in Issue 29 of RPC Bites), in December 2021, M&S commenced design right infringement proceedings against Aldi. 

The product at the centre of the latest case is Aldi's 'Infusionist' gin liqueur, which incorporates edible gold flakes and a festive light-up bottle (the Product). The Product was first advertised and marketed last autumn. M&S claims that it infringes 5 of its UK registered designs for a light-up gin bottle. The retailer registered those designs last April to protect, amongst other things: (i) the shape and contour of the bottle and cork stopper; (ii) the illumination of the bottle; (iii) the gold leaf flakes; and (iv) the bottle's winter forest silhouette design (the Registered Designs). 

M&S alleges that the Product's design is "strikingly similar" to its Registered Designs and that it does not “produce on the informed user a different overall impression to the M&S designs.” As such, it is seeking an injunction to restrain Aldi from selling the Product, as well as claiming damages for the alleged infringement.

The claim perhaps demonstrates that brand owners are moving away from the usual trade mark based claims, which can be difficult to bring against discount supermarkets, who are well known for selling primarily own-brand goods.

Don't mix Bitcoins with pizza!

Cryptocurrency and Bitcoin have made serious strides in recent years but when it comes to advertising, caution is needed, as fast-food giant, Papa John's recently learnt the hard way. 

To commemorate 'Bitcoin Pizza Day' last May, Papa John's ran a promotion on its website and Twitter page. This offered customers a "free Bitcoin worth £10" from cryptocurrency platform, Luno when they participated in Papa John's "£15 off when you spend £30" promotion. The ASA challenged whether the ads were irresponsible on the basis that they took advantage of consumers' inexperience or credulity in relation to cryptocurrency and trivialised investment in it. 

Papa John's outlined its historic connection to Bitcoin to defend the collaboration with Luno: it is believed that in May 2010, Bitcoin was first used to purchase 2 Papa John's pizzas. It also highlighted that the ads did not comment on investing in Bitcoin and that customers were free to choose whether they wanted to create a Luno account to access the free Bitcoin. Notwithstanding their position, Papa John's also confirmed to the ASA that the ads had been removed. 

Despite this, the ASA upheld its challenge. Drawing on the complex and unregulated nature of cryptocurrency, the ASA concluded that most people who engaged with the pizza promotion were likely to have a limited understanding of cryptocurrencies and the risks associated with them (which the ads failed to warn of). Using pizza to promote a cryptocurrency account also encouraged consumers to engage in a potentially high risk investment without proper consideration, whilst also trivialising the seriousness of such an investment. The ads must not appear again in the form complained of.

The NHS Food Scanner App - swipe for healthier products 

As part of its 'anti-obesity strategy', on 10 January 2022, the Government launched the NHS Food Scanner app. Part of the NHS' 'Better Health Campaign', the app can be used to scan the barcodes of grocery items and suggest alternatives which contain less salt, sugar or saturated fat. Those items will be labelled with a 'Good Choice' badge and a traffic light rating system will clearly identify whether a product is high, medium or low in sugar, salt and saturated fat.   

Following the rise in childhood obesity since the start of the COVID-19 pandemic, the app is targeted at families and offers an augmented reality feature to "bring the sugar, salt and fat in a product to life to help kids understand more about what they're eating."

Whilst the app will be welcomed by some, food and drink businesses that deal in HFSS items and who already feel squeezed by advertising watersheds and restrictions on the placement of product promotions will be concerned about the app's impact. 

When is organic really organic?

Up until 31 December 2021, UK and EU farmers adhered to the same rules on organic food and drink production. That all changed this year with the UK/EU trade deal signalling the expiration of the equivalence agreement for the UK's six organics certification bodies. This means that British based organic food traders are now banned from re-exporting goods that have already been imported from outside the EU, into the EU. 

Whilst the UK/EU trade deal allows for exports of UK organic food and drink products to the EU until 2024, there are deep concerns that the decision will present immediate and significant challenges for businesses that access raw materials not based in the UK. This will in turn have great implications for UK exporters to the EU.

Morrisons uses technology and the 'sniff test' to go green

It’s a green start to 2022 for Morrisons as the supermarket introduces two key initiatives in a bid to reach various green goals. This includes achieving net-zero in its operations by 2035, reducing Scope 3 carbon emissions in its supply chain by 30% over the next 10 years and reducing in-store food waste by 50%, by 2030. 

Throughout 2022, Morrisons will offer own-brand suppliers free access to 'Manufacture 2030', a digital collaboration platform that helps suppliers to track, measure and forecast their carbon emissions using data analysis to increase energy efficiency and reduce waste. Morrisons’ suppliers can also use the platform to attend monthly webinars and view tailored information on how to reduce their emissions, in line with the World Wildlife Fund's guidance. 

Not content with one ESG initiative, from February 2022, Morrisons will also remove 'use-by' dates on own-brand milk packaging and will instead encourage customers to use a 'sniff test' to determine when their milk is no longer usable. The packaging will however continue to provide a 'best before' date to help guide customers. The decision has been celebrated by the dairy industry following research which showed that milk is the third most wasted consumable product in the UK. In fact, it can often be consumed days after its designated 'use by' date and it is hoped that Morrisons' scheme will result in less wastage. 

The FSA launches a consultation on precautionary ‘may contain’ allergen labelling

As reported in Issue 19 of RPC Bites, in October last year Natasha's Law was passed, requiring full ingredient and allergen labelling on pre-packed for direct sale items. In a continued effort to protect food-hypersensitive consumers, the FSA has now launched a consultation on precautionary allergen labelling (PAL).  

At present, legislation requires food labels to indicate the presence of any of the 14 main allergens if they are used as an ingredient or processing aid. However, when it comes to unintentional allergen cross-contamination, it is best practice to use a PAL statement which is more often than not signified by the wording 'may contain'.     

The consultation will consider how PAL can be communicated more clearly and consistently to consumers and be based upon proportionate and standardised processes for assessing, managing, and communicating the risk of allergen cross-contamination. This follows FSA research, which showed that some food businesses were confused about when and how to use PAL and that consumers were similarly confused regarding the level of risk communicated by such labelling.  

The full consultation can be found here and responses should be submitted by 14 March 2022.

Online alcohol sales to increase by 66% over the next 5 years 

According to a recent study by drinks market analysts IWSR, the drinks industry is set to see a 66% increase in the sale of alcoholic drinks online by 2025. The study reviewed 16 key markets including the UK, France and Germany and concluded that 2020 saw a 43% increase in alcoholic drinks sales in those countries. Compared to only a 12% increase the year before, the jump is significant, and is likely to be a product of COVID-19 related restrictions, as well as a general shift in consumer behaviour. 

The analysts also found that business models for alcohol sales had heavily diversified in a bid to attract consumers. From alcohol delivery services operating out of 'dark kitchens' to savvy wine-rating and alcohol delivery apps, the growth of online alcohol businesses will be one to watch in 2022 and beyond.

The UK’s first net-zero carbon restaurant? McDonalds!

As part of its 'Plan for Change' initiative, a sustainability strategy to help the fast food giant achieve net zero emissions across the UK and Ireland by 2040, McDonald's has opened the UK's first net-zero carbon restaurant. 

Powered by on-site solar panels and wind turbines, the Shropshire site includes a Drive-Thru made from recycled tyres, wall signs fashioned from used McDonald's coffee beans and a biodiversity garden and nature trail which collects rainwater from the car park to create an ecosystem for wildlife. The building is also insulated with wool from British sheep and its external cladding is made from recycled IT equipment and white goods. 

The aim is for the restaurant to act as a blueprint site for future buildings. Will other UK restaurants follow suit now that McDonald's has started the trend?