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RPC Bites #56 - HFSS delays, Percy Pig's legal pursuits and Getir fails to deliver on promotion…

Published on 28 July 2023

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!!

HFSS promotional restrictions further delayed until 2025

Last month, the UK government announced another U-turn on its proposed ban on buy-one-get-one-free ('BOGOF') deals on products high in fat, sugar and/or salt ('HFSS products'). The measures, which had been due to come into force in just four months' time, are now likely to be rolled out in October 2025. The Government has put the delay down to the continued high levels of inflation, which have impacted food more-so than other consumer products.

Despite the Government row back, major supermarkets Tesco and Sainsbury's plan to push ahead, voluntarily implementing the ban across their English stores. Some organisations, including the BRC, called for the ban's reversal during the cost-of-living crisis, but Tesco and Sainsbury's are sticking with it as part of their healthy living campaigns, whilst seeking to ensure their customers' weekly shop remains affordable. Waitrose said it also aimed to reduce the number of BOGOF deals for HFSS products in its supermarkets.

Health campaigners, such as Sustain, have welcomed the voluntary move, calling on other retailers to follow suit in limiting such promotions. Not all supermarkets are taking the same approach. For example, Morrisons are continuing with HFSS multibuy promotions to assist consumers with the rising cost of food and drink.

Consumer behaviour experts continue to argue that the cost-of-living crisis is being used by brands to justify the continuation of HFSS multibuy promotions, when such promotions encourage consumers to spend more, not less – they also suggest that retailers may find that moving away from the promotions may help boost their reputation with consumers, who increasingly care more about access to healthier choices. In any event, retailers will need to make plans to replace their HFSS multibuy offers to avoid being caught out when the regulations do eventually come into force in 2025.

Swizzels agrees to redesign rival Percy Pig sweets to end M&S dispute

Following an amicable resolution, Swizzels has agreed to change the design of its 'Pigs Mugs' sweets after M&S accused the company of copying its famous 'Percy Pig' range. In November 2022, M&S' lawyers filed a 37-page document claiming the sweets were so alike that customers may have ended up buying the wrong ones. Their legal submission included a photo of a customer who had a tattoo of Percy's face.

In an announcement made after the newly reached settlement, an M&S spokesperson commented that, “M&S has made a significant investment in building a strong Percy Pig brand over the past 30 years and believe it is important to protect the registered trade marks relating to Percy Pig’s appearance."

This isn't the only Percy-based pursuit that M&S has had in recent months. In May, a Hitchin-based ice cream parlour, Fabio's Gelato, received a letter from M&S (with some complimentary Percy Pigs), requesting that they change the name of their 'Perky Pig' gelato, given the resemblance it had to Percy. Fabio's Gelato owner, Fabio Vincenti understood M&S' need to protect its beloved Percy Pig range and has since renamed its product 'Fabio's Pig'.
These two Percy pickles are clear examples of active trade mark portfolio management by M&S, and show the importance of brands making it clear to competitors that they will take action to protect their valuable IP.

Getir rapped by ASA for promotion it just couldn’t deliver on

Getir, the on-demand delivery service for groceries and restaurant food, has been criticised by the Advertising Standards Agency (ASA) for promoting a deal that it was unable to fulfil due to overwhelming customer demand. The company is known for its attention-grabbing promotions and heavy discounts, but Getir had bitten off more than they could chew on this occasion.

The company emailed all its customers back in November 2022 offering a £20 discount, along with an advert that read: "Shop right now to get all your essentials for a quid!" However, only users in specific locations and at certain times could actually redeem the offer. Getir did not honour the promotion for customers who had tried to redeem it but were, unsuccessful due to demand. This led to customers complaining to the ASA. Getir have attributed the issue to a "miscommunication about the mechanics" of the promotion, which became apparent when they were unable to meet the demand during peak delivery times.

In its ruling, the ASA stated: "the promotion had not been administered fairly and that it was likely to have caused participants unnecessary disappointment". It also ruled that Getir had breached CAP Code rules 8.1 and 8.2 (Promotional Marketing) 8.9, 8.10 and 8.11 (Availability).

Getir stated that it has now implemented various measures to prevent similar issues in the future and would not let its customers down again.
Short term email promotions such as the one offered by Getir are a popular way for retailers to attract customers - this decision shows that the ASA is alive to the risks associated with them and will take action to make sure brands follow through on their promises.

Tesco order to lose Clubcard branding

In Issue 55 of RPC Bites, we reported on the decision in the long running dispute between Lidl and Tesco over the latter's 'Clubcard' branding. Tesco had revamped its in-store Clubcard brand to include a yellow circle in a blue square, which Lidl argued infringed one of its trade marks. The judgment in April this year found in Lidl's favour.

Now, Tesco has been ordered by the court to remove all of the infringing Clubcard branding from its stores. The offending branding includes the nearly 8 million "Clubcard Prices" discount signs that are displayed. Although Tesco argued that the injunction wasn't necessary – it was happy to pay damages to Lidl – Lidl argued that the only way to prevent future infringement was for Tesco to be ordered to remove the branding. The court agreed, stating that it would be very difficult to estimate the financial detriment caused to Lidl.

Tesco intends to appeal the decision, but if that appeal is unsuccessful, it will have just 9 weeks from 21 June 2023 (being the date of the original decision) to comply with the order.

Get ready for the single-use plastic ban in England

Retailers should mark 1 October 2023 in their diaries as the date that England bans certain single-use plastic products via the Environmental Protection (Plastic Plates etc. and Polystyrene Containers etc.) (England) Regulations 2023 (the Regulations). The Regulations prohibit businesses from supplying certain single-use plastic plates, cutlery and food and drink containers. The ban includes online and in-store sales of new and existing stock, regardless of whether the single-use plastic includes biodegradable, compostable or recycled material.

A number of exemptions to the ban will be available, including for plates and bowls filled at the counter for take-aways, and polystyrene containers for food that will require further preparation (such as microwaving) before it is consumed.

In May 2023, the Government published guidance on how businesses can prepare for the ban. Retailers should be identifying which products are caught by the Regulations as well as any exempt products. Now is the time to use up any existing stock and source re-usable replacements in advance of the October enforcement date.

Court of Appeal granted Feedback permission to apply for judicial review of the Government's Food Strategy

The Government first published its Food Strategy in June 2022, setting out plans to develop a more sustainable, healthier and affordable food system in the UK. Despite significant fanfare around the announcement, it contained no specific policies to help the nation move towards a more environmentally friendly (and lower carbon impact) diet.

Not long after the strategy was published, the food system campaigns group Feedback started legal action against Defra (the government department responsible for the Food Strategy). Feedback sought a judicial review of the Food Strategy, calling it 'unlawful' for its omission of commentary on the impact of emissions from the meat and dairy industries, and of any policy plans to mitigate those emissions. This, the group alleged, went against the National Food Strategy (commissioned by the Government in 2019) which recommended a 20% reduction in meat and dairy consumption by 2030 if the UK was to meet Net Zero targets.

Feedback was refused permission to apply for judicial review twice in 2022, but in June this year, the Court of Appeal overturned those decisions, ordering that a full hearing on Defra's alleged omission will take place in October 2023. If the judicial review is successful, and the Government Food Strategy is deemed to be unlawful, then Defra will be compelled to re-write the strategy with consideration for the issues Feedback allege it missed.
Environmental campaign groups are increasingly using the courts to bring ESG issues to the attention of lawmakers and key industry players. Other recent examples of this include Greenpeace's consumer protection complaint alleging greenwashing against Danish Crown in Denmark, and various environmental organisations (including ClientEarth) bringing civil proceedings against Danone in France in relation to their plastic use.

Scottish Deposit Return Scheme – delayed until 2025

RPC has written before about the Scottish Government's plans for a Deposit Return Scheme, which was due to come into force this August in a bid to cut waste caused by drinks containers. It has now been announced that the Scottish scheme will be delayed until October 2025 – bringing it in line with England, Wales and Northern Ireland's timeline for their equivalent schemes.

The Scottish Government's original plan and commencement date had caused concern amongst ministers, as well as industry bodies (such as drinks manufacturers and retailers) who feared a disruption to trade across the Scottish border whilst different schemes were in place. The delay will therefore be welcome news to some and will allow further time for any necessary adjustments to supply chains.

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