RPC Bites #58: Trade mark troubles, cheese-y appeals, warm ice cream and low-alcohol labelling...

Published on 29 November 2023

Welcome back to RPC Bites. With a definite chill in the autumn air, our aim in the next 2 minutes is to provide you with a warming flavour of 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!

Alcohol and under-18s: Portman Group rules revised

Following a 3-month consultation, the Portman Group has announced a complete prohibition on alcohol brand names, logos and trade marks appearing on merchandise which has a particular appeal to, or is intended for use primarily by, under-18s. The ban will be implemented via an amendment to rule 3.2(h) of the Group's Naming and Packaging Code of Practice.

Historically, rule 3.2(h) provided that: "a drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s," Therefore, the applicable test under the rule was whether the drink, packaging or promotional material appealed to / resonated with under-18s in a way that it would not with over-18s.

However, a ruling made against Jatt Life Original Vodka last year appears to have spurred on the Portman Group's consultation. Complaints were made against Jatt Life's promotion of baby grows and bibs incorporating the text "Jatt life" and "make mine a double". The Panel found that the promotion of the baby clothing did not technically flout the rule 3.2(h) test on 'particular appeal' to under-18s as the baby grows and bibs would, of course, appeal to adults rather than babies. However, the Panel was uncomfortable with alcohol branding appearing on children's items and noted that had the baby clothing been promoted as part of a sponsorship deal, the promotion would have been in breach of rule 3.4 on Alcohol Sponsorship, which  specifically prevents alcohol brand names, logos and trade marks from appearing on merchandise intended for use by under-18s.

Now, the Portman Group has added the following wording to rule 3.2(h), to bring it in line with rule 3.4: "A producer must not allow the placement of brand names, logos or trademarks on merchandise which has a particular appeal to under-18s or is intended for use primarily by under-18s." This revised rule 3.2(h) will take effect following a 3-month grace period allowing producers and marketers to familiarise themselves with the amendment.

Grilloumi cheese beats Cyprus at the General Court 

Swedish Food Company, Fontana Food, has successfully defended an appeal brought against it by the Republic of Cyprus over the registration of a new trade mark for "GRILLOUMI". Fontana has, since 2009, owned a trade mark for "Grilloumi" in classes 29 and 30. It claims that Grilloumi is a hard cheese (not dissimilar to its Cypriot cousin, Halloumi) intended to hold together better when cooked on a grill. In 2016 it applied to register the trade mark in class 43 i.e., services for providing food and drink. The Cypriot Government opposed the application on grounds that the proposed trade mark was identical or similar to 'Halloumi' and registration would cause a likelihood of confusion (Article 8(1)(b) of the EU Trademark Regulation).

The opposition has spanned 6 years (being launched in 2017) and following a ruling by the EU Boards of Appeal in Fontana's favour in 2022, Cyprus finally lost its opposition at the General Court this year.

The overarching view of the General Court was that there was no likelihood of confusion between "Grilloumi" and Cypriot Halloumi cheese as the trade marks in issue were similar to a below-average degree only (despite the trade marks differing by just a few letters and Grilloumi emulating one of halloumi's most loved qualities).

Unusually in this case, Cyprus relied upon trade marks for "Halloumi" as opposed to the cheese's protected designation origin (PDO) status. This is because Halloumi only achieved its PDO status after Cyprus' opposition was launched in 2021 (as reported in Issue 30 of RPC Bites). It's arguable that had the Republic of Cyprus been able to rely on the PDO, the outcome would have been different for Halloumi (and Grilloumi) lovers Europe-wide? 

Government gets unwanted Feedback on net-zero strategy

The ante has been upped in the campaign to combat climate change, as the campaign group, Feedback, had its judicial review of the UK Government's Food Strategy heard in the Court of Appeal last week.  Feedback allege that the Government unlawfully failed to include measures to reduce milk and dairy consumption in its 2022 Food Strategy, in breach of its obligations under the Climate Change Act 2008. The Act provides that the Government must implement policies to meet its 'net zero by 2050' target..

Feedback is seeking to "compel the government to act on the advice of its own climate experts, who have said time and time again that meat and dairy reductions are required if we are to meet our legally enshrined climate targets,” as noted by its executive director, Carina Millstone. Stay tuned to RPC Bites for news of the Court's judgement. 

Unilever to grant access to its patents for warmer ice cream storage

Revealing that ice cream freezers currently account for 10% of its supply chain greenhouse emissions, Unilever has announced its development of patented technology to enable ice cream to remain stable at -12°C - that's 6 degrees warmer than the current industry standard of -18°C! Studies have shown that storing ice cream at the warmer temperature of -12°C can reduce energy consumption of freezers by around 25% per freezer cabinet and running freezers at a warmer temperature is not only an environmental win - it should also reduce freezer running costs for retailers at a time of ever spiralling energy prices.

With a view to helping reduce global carbon emissions, Unilever has now confirmed that it will be granting a free, non-exclusive licence to all ice cream manufacturers to use its reformulation patents to store ice cream at higher temperatures. Unilever's announcement demonstrates the value of collaboration in achieving positive environmental change. 

Consultation on NoLo alcohol labelling

At the end of September, the UK Government launched a consultation on options for updating its voluntary guidance on the labelling of alcohol free and low-alcohol (NoLo) drinks, in a bid to increase the substitution of alcoholic drinks with NoLo alternatives. The Government is aiming to foster an environment that allows consumers to make better (and in some cases) healthier choices around drinking and hopes that by making labelling laws around NoLo drinks clearer, marketing (and therefore consumption) of those drinks will increase.

Amongst other considerations, the Government's consultation asks whether the threshold at which a product can be described as "alcohol free" should be increased from 0.05% to 0.5% and whether legislation should govern the labelling of NoLo drinks - currently the Government's guidance is not mandatory. Crucially for NoLo brands, the Government is also considering its guidance on the labelling of NoLo drinks that are associated with alcoholic drinks as 'non-alcoholic' - currently the Government's labelling guidance advises against this - we understand this to be a key gripe for NoLo brands. The consultation asks whether the term ‘non-alcoholic’ should be recommended for use with a name commonly associated with an alcoholic drink.

Stay tuned as we hope to cover the Government's response to the consultation here at RPC Bites. 

The food industry tries to see the (de)forest for the trees

New EU laws coming into force at the end of 2024 will require companies to prove that their goods have not been produced on recently deforested land by precisely geolocating the plots of land on which they are grown. EU authorities will then carry out checks on a selection of this data, the stringency of the checks depending on the deforestation risk rating of the country of origin. The proposals have led to a rush of interest in technology-led solutions to map deforestation and help ensure compliance.

The food industry, however, has criticised the new rules noting that the EU has left it too late to finalise the details of an initiative that aims to reduce carbon emissions and preserve biodiversity; although the end of 2024 may seem far off, many crops are being planted now for harvest in 2024-25. Despite this, the EU has not finalised its list of "high-risk" countries attracting extra checks, due in part, to strong objections from producing countries.

Concerns have also been raised over the effectiveness of the proposals, due to a supposedly blunt definition of deforestation and the risk of a two-tier system in which companies simply ship non-compliant goods to other parts of the world, rather than reducing deforestation globally. 

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