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RPC Bites #30 - Cypriot cheese receives protected status, Colin v Cuthbert continues and finally, clarity on composite food products

30 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.

'Halloumi' and 'Hellim' afforded PDO status

As fans of 'Halloumi' or 'Hellim' will no doubt already know, on 12 April, the European Commission announced two new measures: The first, that the Cypriot cheese has been afforded protected status, under the EU's protected designation of origin (PDO) scheme; The second, that for the first time 'Hellim', which originates from the North Side of the island, will be allowed to cross the 'Green Line', provided that the cheese and milk used in its production meets EU animal and public health standards.

The measures mean that going forwards, neither 'Halloumi' nor 'Hellim' can be used as names for comparable cheese products that originate from outside of Cyprus. This ensures that like other PDOs (which include 'Prosecco' and 'Feta'), 'Halloumi' and 'Hellim' will act as badges of authenticity and origin. The announcement has been welcomed by Cyprus' President, Nicos Anastasiades, who remarked on Twitter that “a shield of protection is now in place”.

Historically, 'Hellim' was not allowed to cross the 'Green Line', which divides the North Side from the South Side. This meant that the product could not be shipped to the EU and that Hellim producers missed out on a lucrative market.

Many hope that the change will bridge the divide between the two halves of the country, but the North Side has already raised concerns, particularly around the need to conform to EU food and sanitary standards. Disquiet has likewise been voiced from the South Side, with some angry that the North (which is only recognised as an independent state by Turkey) has been allowed to trade with the EU. A six-month grace period has since been announced by the EU, in the hope that this will allow both sides to work through their respective concerns.

Aldi launches ‘packaging-free’ trial and clothing line amidst Colin v Cuthbert dispute

As if being embroiled in the biggest food fight in recent years wasn't enough (for those who missed issue 29 of RPC Bites (here), M&S has issued proceedings against Aldi, regarding its Cuthbert the Caterpillar cake), Aldi has announced not one but two new ventures: The first, an inaugural 'packaging-free' trial at its Ulverston store; The second, the launch of its first branded clothing range, 'Aldimania'.

Packaging trial

The 'packaging-free' trial allows customers to buy staple loose household items such as rice and pasta from a bank of dispensers at a slightly reduced price. The company estimates that the trial is set to save 130 tonnes of plastic annually once rolled out to all of its stores. Customers are, however, required to use Aldi's paper bags and cannot bring their own containers to fill with the goods. Given the production process required to make paper bags, some have commented that the initiative is less sustainable and environmentally beneficial than it may first appear.

The trial follows Aldi's commitment to halving its plastic packaging by 2025, which it claims should eliminate approximately 74,000 tonnes of plastic over five years. However, this is by no means the only trial of its kind in the grocery shop marketplace; both Waitrose and Asda have experimented with similar initiatives at select locations.


'Aldimania' is Aldi's new 'Specialbuy' collection of gender-neutral sports and loungewear. Due to hit stores this week, the collection includes hoodies, pyjamas and underwear, all emboldened with the discount supermarket's logo. The new range has been in part promoted via a billboard campaign featuring the slogan 'Aldi's Just Done It'. Many have been quick to point out the similarity with Nike's famous 'Just Do It' strapline and to question whether the sports retailer will perceive this as a threat to its intellectual property rights and follow in M&S' footsteps.

Copy-caterpillars: the dispute continues

Speaking of Colin v Cuthbert, whilst M&S' trade mark infringement claim is still in its early stages, the drama continues to unfold on social media. Shortly after proceedings were issued, Aldi took to Twitter to garner support using the hashtag #FreeCuthbert. Then, despite Cuthbert cakes having been removed from supermarket shelves at the start of the dispute, the discounter announced that it would be introducing a limited-edition version, with the proceeds of sale donated to charities, including M&S' partner charity, Macmillan Cancer Support. M&S responded to the tweet, stating that whilst it "loves a charity idea", Aldi should use its own character, Kevin the Carrot.

We will continue to monitor the case and to provide updates in subsequent issues of RPC Bites.

Tesco fined for selling out of date food

Tesco has been fined £7.5M after pleading guilty to selling food past its use by date at three of its Birmingham stores.

Birmingham City Council brought the prosecution against Tesco under the Food Safety and Hygiene (England) Regulations 2013, after food inspectors from the Environmental Health Department found three stores in and around Birmingham selling out-of-date food on numerous occasions between 2015 and 2017.

Tesco pleaded guilty at Birmingham Magistrates court to 22 offences across the three stores, which totalled 67 separate out of date items, leading to the handing down of one of the most substantial fines ever for an offence of this nature. The court heard that officers first visited stores in June 2015 after receiving a complaint from a member of the public and found 6 items on display beyond their use by date. Officers were invited to complete another check in April 2016 and found various further out of date items on display, including pork belly and flavoured milk. Then, visits to 2 other stores after a subsequent complaint found several additional offending items, including fruit with visible mould.

A spokesperson for Birmingham City Council's environmental health team said: "the purpose of the use-by date is to protect the health of the consumer. The manufacturers put the date on their products to guarantee the food is safe and ignoring this date completely undermines consumer safety".

Tesco's fate sends a warning to other food retailers to ensure that appropriate steps are taken to guarantee that their products are in date. The message is clear; when it comes to consumer safety there is no room for error and fines can be hefty.

Skinny spice not so skinny after all

A Facebook post by Not Guilty Food Co (trading as Skinny Food Co), which featured a man holding four spice mixes, each bearing the words 'Skinny Spices' has been found to breach the CAP Code rules on authorised health claims.

Not Guilty Food claimed that its products were low in sugar, fat and calories when compared with market alternatives and that the products were not actively marketed as weight loss products and were simply named after their 'Skinny Spice' trade mark.

The ASA, however, found that the ad breached the CAP Code, on the basis that customers would interpret 'Skinny Spices' as being linked with and promoting weight loss or maintenance when compared to alternative products. As such, the term 'Skinny Spices' amounted to a health claim. Under the CAP Code, only products containing ingredients that produce "the physiological effect of weight loss or maintenance" in a significant quantity can be promoted using such claims. The spices did not contain such ingredients and thus the health claims were not permitted.

For similar reasons, Not Guilty Foods were also prohibited from relying on 'Skinny Spices' being a nutritional claim as the composition of the spices would only produce a negligible nutritional benefit compared to other alternatives.

The ASA concluded that as 'Skinny Spices' would be understood as a health claim, the term could not be used to advertise products unless an authorised health claim was being made. Going forwards, use of Not Guilty Food's registered 'Skinny Spices' trade mark will only be permitted in relation to products that contain a significant quantity of substances that would result in weight loss or maintenance.

Finally, clarity on composite food products

As avid RPC Bites readers will know, we have been closely following the changing requirements for the export of composite food products from the UK to the EU and Northern Ireland (see Issue 29 and Issue 27).

To recap, 'composite food products' are food products which contain a mixture of processed products of animal origin (POAO) and plant products, for example lasagne and meat-based pizzas.

From 21 April 2021, the rules for the movement of such products changed following the introduction of the EU Animal Health Regulations. The regulations have introduced new export health certificates (EHC) for composite food products and private attestation requirements for previously exempt composite food products.

Fortunately for composite food product exporters, the new rules will be somewhat phased in. For exporters of products which already require an EHC, existing EHC's can be used until August 2021. However, for products which now require an EHC under the new rules, the relevant EHC must be produced from 21 April 2021 and for previously exempt products, private attestations will be needed from 21 April 2021. The list of exempt composite food products can be found here and includes confectionary, bread, cakes and biscuits.

Click here to access DEFRA's helpful decision tree, produced to assist exporters in deciding whether their product is a composite food product and any relevant export rules.

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