April Update - Food & Agri News

Trade & Cooperation Agreement Ratified

The EU finally ratified the Trade & Cooperation Agreement on Tuesday 27 April after a tense stand-off in response to the UK government unilaterally extending grace periods to Northern Ireland (NI). At the same time NI has seen tensions mount from loyalists in response to the border in the North Sea. It is likely we won’t see the last of negotiations and political maneuvering on each side.

Food Safety & Hygiene fines to Tesco

Tesco Stores Ltd (Tesco) has been fined £7.56 million at Birmingham Magistrates' Court after pleading guilty to 22 offences under the Food Safety and Hygiene (England) Regulations 2013, after inspections by Environmental Health officers found three stores selling out of date food on several occasions.

Tesco was ordered to pay a fine of £7,560,000 and £95,500 costs, as well as a £170 victim surcharge.

The retailer pleaded guilty at Birmingham Magistrates Court in September 2020 to 22 offences and was fined this month. The violations included 67 items of out-of-date food being on sale between 2015 and 2017. The judgement is available here: Judgement against Tesco Stores Ltd | Birmingham City Council  

Mark Croxford, head of Environmental Health for Birmingham City Council, said the case sends a warning to retailers to ensure their stock is in date and if they are found to be breaching the rules action will be taken.

The manufacturers put the date on their products to guarantee the food is safe and ignoring this date completely undermines consumer safety. There were numerous missed opportunities to check the dates on these products and remove them from display – and the fact incidents were found on several occasions, in different stores and over 14 months, is a major concern.”

Judge Shamim Qureshi said the decision from Tesco to invite EHOs back in 2016 after the 2015 incident was an “own goal” because out of date items were found again.

This underlines the issue for food businesses of scale and particularly where there is some reliance on manual processes to ensure compliance.

The case follows Tesco Stores Ltd, R (On the Application Of) v Birmingham Magistrates' Court [2020] EWHC 799 (Admin) (06 April 2020) (bailii.org) where Tesco sought to argue that the law was wrong to presume that food that was past its use-by date was automatically unsafe.  The High Court was asked to determine whether, taken together, the Food Safety Regulation (Regulation (EC) No 178/2002) laying down the general principles and requirements of food law and procedures in matters of food safety, and the Food Information Regulation (Regulation (EU) No 1169/2011) on the provision of food information to consumers, created an irrebuttable presumption that food offered for sale beyond its use by date was unsafe and therefore, subject to available defences, amounted to a criminal offence under the Food Safety and Hygiene (England) Regulations 2013 (SI 2013 No 2996) (“the 2013 Regulations”).

Tesco presented compelling evidence from a leading microbiologist that the out-of-date food found in the stores in Birmingham was still safe to eat. The Court disagreed and confirmed that simply selling food past its use-by date was enough to commit the offense.  Criminal offences formulated by reference to a deeming provision are typically rare because of the abhorrence of finding an individual guilty of a criminal offence on the basis of a presumption which may be untrue. ‘The implication of the Tesco case is that, once a use by date has passed, a presumption of unsafety is essentially now a matter of strict liability subject only to the due diligence defence.’ (Selling food after its "use by" date (localgovernmentlawyer.co.uk))  

Judge Qureshi called the eventual guilty plea “the most reluctant guilty plea in legal history” and was critical of the approach taken by Tesco to challenge the automatic presumption of food being unsafe if it was past its use-by date. Under food safety regulation (178/2002), breach of legislation provides for a ‘rebuttable’ presumption of breach of Food Safety Requirements. The Judge’s position that this was a ‘spurious’ argument therefore seems like an extremely censorious approach to have taken.

The fine shows the application of the Criminal Sentencing Guidelines based on turnover but is highly unusual for offences of this kind.   The judge himself commented that "[t]he Sentencing Council desperately needs to introduce another table into their sentencing tables. They need to give guidance on multi-billion pound companies".

Tesco established it had an overall good safety and hygiene record as offences were at three of its 2,900 stores and it took steps to reinforce training and resolve problems in 2016 and 2017. It is not yet known if this level of fine will be appealed.

Caterpillar Wars - Colin vs Cuthbert

Marks & Spencers (M&S) has been selling the popular ‘Colin the Caterpillar’ cake for some 30 years. On 8 October 2008 M&S filed an application for a trademark for the cake in the UK and EU, under class 30, which relates to various types of food. The application was later registered as a trademark in April 2009. This means that Colin the Caterpillar is a protected intellectual property right and M&S can bring an action for infringement to anyone else who attempts to use this trademark.

M&S’s three trademarks relating to Colin include the words “Colin the Caterpillar” and the packaging, with this it is maintained that Colin has acquired and retains an enhanced distinctive character and reputation.

Since M&S began selling Colin the Caterpillar cakes, other retailers have followed suit and sold similar caterpillar cakes, including all of the ‘big four’ supermarkets, Asda, Morrisons, Sainsbury’s and Tesco, using names such as ‘Curly the Caterpillar’ (Tesco), ‘Clyde the Caterpillar’ (Asda) and ‘Wiggles the Caterpillar Cake’ (Sainsbury’s). 

The claim is brought under section 10 (3) of the Trade Marks Act which affords owners of well-known trade marks protection against third parties using an identical or similar trade mark in manner which takes unfair advantage of, or is detrimental to, the distinctive character or the reputation of the well-known trade mark. Trademark registration gives the owner the right to sue for trademark infringement against any person or business who uses an identical or similar mark in the course of trade without the owner’s consent. The owner of the trademark must prove that the use has caused or is likely to cause confusion in the market or where the mark’s reputation is relied upon.

In addition to trade mark infringement, M&S may also try to claim that Aldi’s Cuthbert amounts to ‘passing off’ – a UK common law offence which can protect any goodwill associated with unregistered rights, including the ‘get up’ or appearance of a product. M&S would need to prove that Aldi’s cake has damaged, or has the potential to damage, their goodwill in Colin the Caterpillar – for example, through loss of sales if customers opt for Aldi’s cheaper alternative. The central issue is whether Aldi’s product is close enough to cause confusion among customers and that incorrect assumptions could be made that it originates from, or is connected to, M&S.

Aldi’s Cuthbert cake is still available on its website (renamed ‘Holly Lane Caterpillar Cake’). If M&S’ case is successful, Aldi will have to remove their version of the caterpillar cake from sale permanently and agree not to sell any similar products in the future.

This is not the first time Aldi has been accused of copying, from hair oil to yoghurt and beer, but it is one that is likely to have a major impact on how food brands serve to protect their IP in the future.

Aldi are currently using the furore to their advantage on social media and it may yet be that there is no such thing as bad publicity in the world of marketing, with such slogans tweeted as: ‘This is not just any court case, this is… #FreeCuthbert’ – a not-so-subtle nod to M&S’ famous advertising slogan.

ASA cases -

Alcohol Advertising and references to outdoor sports/dangerous activities  

RR Whiskey Ltd RR Whisky Ltd - ASA | CAP – A complaint was upheld against River Rock whisky where adverts involved images of mountaineering and referencing whisky tasting at the end.

The complainant challenged whether the ads were irresponsible, because they linked alcohol with an activity or location in which drinking would be unsafe.

RR Whisky Ltd argued although the ads featured images of mountains, and people walking, they did not believe the ads implied or stated that the people featured had consumed whisky. They did not believe any consumption took place in an unsafe environment.

The CAP Code stated ads must not link alcohol with activities or locations in which drinking would be unsafe. It permitted alcohol ads to feature sporting or physical activities, but stated that ads must not imply those activities were undertaken after the consumption of alcohol.

The ASA noted that neither ad showed someone drinking alcohol. However, they considered consumers were likely to interpret references in by-lines in the ads to mean whisky had been consumed at altitude, compounded by images of the mountaineers. The ASA considered drinking alcohol in such conditions would be unsafe and therefore ad breached the Code.  Images of toasting afterwards did not negate the strong impression that whisky had been consumed on the mountain, after which the participants would need to descend during treacherous weather conditions and on difficult terrain.

The work 'Skinny' as both a claim and trademark - considered as a health and a nutritional claim

Not Guilty Food Co t/a The Skinny Food Co - Not Guilty Food Co Ltd - ASA | CAP  Two complainants challenged whether the claim “Skinny Spices” which was subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on food (the Regulation).

Not Guilty Food Co Ltd asserted their brand ‘Skinny Food Co’ had a range of products, such as syrups, sauces and seasonings. They said their products were linked to their brand names and their products were lower in sugar, fat or calories in comparison to similar products in the market place. They said the products were not marketed as 'weight loss' products. Not Guilty Food said they owned the registered trademark ‘Virtually Zero’ and that they used that on their labels where the product was either low sugar, fat free or low calorie. They added that they also owned the registered trademark ‘Skinny Spices’ and that they brought those products to market as they were a lower, if not zero, sugar spice alternative to others available on the market.

The complaints were upheld by the ASA. The ASA noted that according to EC Regulation 1924/2006 on nutrition and health claims made on foods (the Regulation), only health claims listed as authorised on the EU Register of nutrition and health claims made on foods (the EU Register) were permitted in marketing communications. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health.

Advertisers must show that health claims were authorised on the EU Register in relation to the relevant foodstuffs contained in that product and that they complied with the related conditions of use. Nutrition claims were defined as those that stated, suggested or implied that a food had particular beneficial nutritional properties, including due to the nutrients or other substances it contained, contained in reduced or increased proportions, or did not contain. Only nutrition claims listed in the Annex of the Regulation were permitted in ads promoting foods, and advertisers must ensure that the food met the conditions of use associated with the claim in question.

The ASA utilised the Food Standards and Information Focus Group. The Group noted that the ad’s reference to “Zero teaspoons of added sugar” was a nutrition claim. However, they considered that consumers would interpret “skinny” in the brand name “Skinny Spices” to mean the product would help to maintain or lose weight, and it was therefore a health claim. There were no authorised health claims relating to weight management or weight loss for the ingredients in the products included in the Skinny Spices range. The Group considered that even were the Skinny Spices brand name considered to be a general health claim, it would still be understood to relate to weight loss or maintenance, and would therefore need to be accompanied by a specific health claim which was related to weight loss or maintenance as well. None of the products met the conditions of use to carry such a claim.

The Group said that the Regulation also required claims to be based on the actual benefits from the food, compared to similar regular versions. They said that, where “skinny” was interpreted as a health claim, the advertiser was required to be able to show that the products would have the health benefit of weight loss or maintenance, over and above what a regular version of the products would provide. However, they noted that there was little sugar or energy in regular versions of the products and that the advertiser’s brand of “Skinny Spices” would not have a health benefit of weight loss or maintenance, over and above the regular versions. Furthermore, the Group said that were “skinny” interpreted as a nutrition claim, it would have negligible nutritional benefit relative to regular versions of the product, and the amount of the spices used and the nutritional benefit from them were unlikely to be significant.

The ASA therefore held, in the context of food, the claim “Skinny Spices” would be understood by consumers as linked to weight loss, or helping to maintain weight when compared to alternative products, and that consuming products in the Skinny Spices range would therefore have those effects. The claim “Skinny Spices”, in the context of the ad, was therefore a health claim. The products in the range would therefore need to contain a substance or substances, in a significant quantity that would produce the physiological effect of weight loss or maintenance, for which there was an authorised health claim relating to weight loss or maintenance. However, there were no such authorised health claims for products in the range, or for substances contained in the products.

As a trademark and/or brand name that would be understood as a health claim about weight loss or maintenance ‘Skinny Spices’ should have been accompanied by an authorised health claim relating to either weight loss or maintenance. However, this was not the case and therefore the ASA held the ad breached the Code.

The ASA further considered that because none of the products in the Skinny Spices range had a composition which allowed them to carry an authorised health claim relating to weight loss or maintenance, the “Skinny Spices” name could not be used in advertising for any of the products in the range. The ASA considered the name “Skinny Spices” would be understood as a health claim which breached the Code for the reasons stated above. Notwithstanding that, they further considered that even if the claim was not understood as such, it would either be a non-permitted nutrition claim (because the products would produce a negligible nutritional benefit compared to regular versions of the product) or a non-permitted general health claim (because the products did not have a composition which allowed them to carry an authorised health claim relating to weight loss or maintenance which could be used to accompany the general health claim).

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