RPC Bites #57: New FSA guidance on CBD consumption, "irresponsible" alcohol ads and greenwashing accusations strike Tesco

Published on 17 October 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!!

Breaking news: New FSA guidance on CBD consumption

The FSA has just updated its guidance for consumers on cannabidiol ("CBD") extracts. Following advice from its scientific committee, the FSA recommends that healthy adults limit their consumption of CBD from food and drink products to 10mg per day. This is a sharp dip from the FSA's previously recommended dosage of 70mg per day which was set in February 2020.

Noting that some CBD products currently on the market have a higher than 10mg dosage of CBD per serving, the FSA has advised consumers to check product labels and consider their daily CBD intake in light of its new guidance. One such product is TRIP's CBD infused drinks, which contain 15mg of CBD per can. As the UK's fastest growing soft drinks brand (according to NielsonIQ data), TRIP's director, James Edmunds quickly stepped in to reassure consumers that TRIP's drinks are safe to consume explaining that the FSA's new recommended dosage  "is based on the lowest grade across a multitude of studies. Studies conducted on our own source of CBD, reviewed by the FSA, generates a safety limit of 105mg, equivalent to seven cans [of TRIP] per day.

The long-term impact of the FSA's new recommended daily dosage remains to be seen. Although the FSA has not explicitly addressed the point, we may see brands with CBD products already on the market taking steps to reformulate them. However, given the stringent rules on the sale of CBD products, any reformulated products could not be sold without a novel food application being made and approved by the FSA. 

Tesco makes headlines for alleged greenwashing

Campaign group, Mighty Earth UK has accused supermarket giant, Tesco of greenwashing due to its sale of Brazilian beef, which it previously stated it would cease.

Several years ago, Tesco pledged to stop sourcing beef from Brazilian suppliers following deforestation concerns; the animals are usually fed soy, the farming of which is destructive to the Amazon). Mighty Earth's investigation revealed that some meat products on Tesco shelves still originated from Brazil, despite claims that "in 2018, [Tesco] became the first UK retailer to stop sourcing beef from Brazil due to concerns about deforestation."

Mighty Earth is now calling for the Competition and Markets Authority ("CMA") to investigate Tesco's activities and consider whether the supermarket has misled consumers and breached the Green Claims Code.

Tesco's error demonstrates the pitfalls of not following through on environmental claims / pledges and with the Digital Markets, Competition and Consumer Bill gearing up to give the CMA greater powers to enforce consumer protection law (and to issue substantial fines), the pressure is on retailers to get their houses in order.

Environmental Strategy - is UK food and drink going green?  

Recent statements by Rishi Sunak suggest that the Government has rowed back on various aspects of its Environmental Strategy, with a handful of announcements impacting the food and drink sector:

  1. The PM claims to have scrapped a proposed "meat tax". What's not clear, however, is who (if anyone) proposed the tax and how far the proposed policy had progressed. Either way, there will clearly be no "meat tax" under Sunak's government.
  2. Despite the PM's U-turn on a number of carbon commitments in the FMCG space (including pushing back the ban on the sale of new petrol and diesel cars from 2030 to 2035) according to The Grocer, Sunak intends to retain proposals to require large food and drink companies to report on their Scope 3 emissions. Details of the proposal are hazy for now, for example it's unclear what reporting system will be used, out of the more than 600 global standards available, nor have company size thresholds been identified.
  3. Potential plans for "eco labels" to be included on front of pack labelling were also announced with the Food Data Transparency Partnership exploring plans.

All told, the food and drink industry eagerly awaits the detail of the Government's revised environmental strategy and will (hopefully) play a collaborative role in drawing up the plans to encourage positive environmental change whilst also ensuring that the sector is able to input. 

A rebellion too far for Tiny Rebel's beers

The Portman Group has upheld a series of complaints against Wales based craft brewer, Tiny Rebel, for the "socially irresponsible" branding of four of its 'January Series' beers:

  1. Hywl Peanut Butter Flapjack IPA – As the product name was a facsimile of "Huel", a popular meal replacement drink brand, the Panel found that it indirectly suggested that the beer had similar therapeutic qualities, in breach of Portman Code Rule 3.2(j).
  2. Monstar Hawaiian Punch IPA – For the reasons noted above, this product was also found to breach Portman Code Rule 3.2(j) due to its similarity to Monster Energy drinks, which are typically associated with physical and mental performance enhancing qualities. The beer's branding was also found to appeal to under 18s, in breach of Portman Code Rule 3.2(h), due to the use of bright contrasting colours, playful doodles and fonts and the prominence of Tiny Rebel's bear logo.
  3. TinyFast Milkshake IPA – Again, this product was found to breach Portman Code Rule 3.2(j) due to its resemblance to SlimFast Strawberry Meal Shake, a meal replacement and weight loss product. TinyFast was also found to appeal to under 18s because of its strawberry milkshake flavour, in combination with its dripping milkshake imagery, fruit illustrations and prominent Tiny Rebel bear logo.
  4. Primed Blue Raspberry IPA – Resembling the energy drink, Prime, which is extremely popular with teenagers and school children, the product was found to breach not only Portman Code Rule 3.2(j) for the same reasons as Monstar, but to also appeal to under 18s.

With branding mimicking popular non-alcoholic beverages possessing health / performance enhancing benefits, each of the beers was also found to encourage irresponsible consumption of alcohol, in breach of Portman Code Rule 3.2(f).  

All four of Tiny Rebel's products have been discontinued as a result of the upheld complaints, which follow more than half a dozen upheld complaints against the Welsh brewer since 2017.  

Government to launch "healthy sales" reporting system for large food companies

The Government is urging all large food companies to implement a new sales data reporting system to report on health-based metrics including the salt, sugar and fat content of products. The hope is that this will give shareholders and campaign groups the information required to encourage companies to make healthier products.

This system has been devised by a working group comprised of representatives from industry powerhouses including Tesco, Sainsbury's, Mars and Nestlé. It is expected to be up and running by next spring, followed by a second phase which is set to see the data being relayed to the public on labels.

Crucially, however, the execution of the system will be voluntary. This is a sticking point for a number of campaign groups who argue that it's simply not enough, particularly in circumstances where big players, such as Kellogg's (who have taken contention with the Government's plans to tackle obesity via restrictions on the advertising of HFSS products before – see Issue 49 of RPC Bites for more details) are notably absent from the working group. 

Another alcohol ad oversteps the mark

The ASA has upheld several complaints relating to an ad for Corky's Schnapps posted on online personality, Charly Anne Collard's social media. The ad featured Ms Collard and her friends on a night out hosted by Corky's Schnapps.

The first aspect of the complaint centred on the identifiability of the ad and influencer marketing rules - although the video was outside the scope of the agreement between Ms Collard and Global Brands Ltd (the company behind Corky's Schnapps), the ASA found that it was an ad and should have been identifiable as such in accordance with CAP Code rules 2.1, 2.3 and 2.4. This was because Global Brands had some editorial control over the content of the video, which contained content previously signed off by it, and had paid Ms Collard in the form of food, transport and alcohol whilst she was preparing the video.

In breach of rule 18.15, the ASA found that the parties had taken insufficient care to ensure the ad was not directed at under 18s, as the platform on which the ad was posted utilised an algorithmically driven "for you" page which meant the ad could have been seen by that demographic. The ASA also identified two individuals under the age of 25 playing a significant role in the ad (friends partying with Ms Collard) in breach of CAP Code rule 18.16.

Further, owing to footage of drinking games being played and phrases like “by this point we were steaming”, the ASA found that the ad encouraged excessive or irresponsible alcohol consumption (in breach of CAP Code rules 18.1 and 18.11.

The ad was prohibited from appearing in the same form again, and the ASA provided Ms Collard and Global Brands with guidance on adhering to rules on influencer marketing and alcohol advertising. 

Putting the AI in Waitrose

Waitrose recently leveraged AI in the launch of its new 26-dish "Japan Menyu" range. The supermarket used the AI platform, Tastewise, to assist in the selection of products for the range. Tastewise analysed a variety of digital datapoints, including social media, menus and recipes in order to identify market trends and consumer demand to inform Waitrose's product selection process.

However, traditional methods of trend prediction remain relevant - Waitrose's executive chef, Martyn Lee, pointed to the importance of reviewing the supermarket's own customer and sales data. That being said, the food industry generally appears to be edging away from the use of market research agencies and manual menu review in favour of AI.

Waitrose is also collaborating with Tastewise to develop its new AI chatbot, TasteGPT, to develop recipes for product innovations at a fraction of the speed of its current 12-month product development cycle. The idea behind utilising this AI is to expedite product development and align the supply of food with consumer demand.

Ban on single-use plastics comes into force

The ban on several types of single-use plastics in England (which we reported on in Issues 54 and 56 of RPC Bites) came into force on Sunday 1 October.

At first blush, the ban suggests a blanket ban on all single-use plastics, but that's not the case. The ban only captures two categories of single-use plastics: (1) plastic cutlery, balloon sticks, plates, trays, and bowls, although businesses may continue to sell such items for use in pre-filled food packaging (e.g., a pre-filled salad bowl) or filled at the point of sale packaging (e.g., a plate to be filled at a takeaway counter); and (2) expanded and extruded polystyrene food and beverage containers, including cups - again, businesses may continue to sell such items if further preparation is required before consumption (e.g., the microwaving of soup or the addition of hot water). Crucially, the ban on the supply of plastic plates, trays, and bowls only applies to sales to consumers, taking B2B sales out of the equation.

Whilst the ban seems to be popular with the public, it has faced criticism from businesses, some of whom have claimed to be unaware of the new rules, and from environmental campaigners who have called it tokenism. Either way, it is to be hoped that the ban, which will be punishable by fines proportionate to the severity of the non-compliance, will have the desired effect on reducing single-use plastics. Although it's clear that society's use of plastics cannot be fought by the Government or businesses alone – a cross collaboration between consumers, those in charge and industry should help to reduce production and achieve meaningful and lasting shifts in behaviour.

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