RPC Bites #29 - breaking news: Colin the Caterpillar v Cuthbert the Caterpillar, uncertainty continues for composite products and packaging producers to face extended responsibility

16 April 2021. 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.

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.

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