The market changes over the last 2 months have been seismic for the food industry. Restaurants, cafes and pubs have all been closed, their producers and suppliers disenfranchised. The retail market and its’ supply chain has been straining to cover the shortfall.
The demand for certain food products has soared at the same time as the logistical problems of fulfilling this demand have created further obstacles.
Advertising and marketing of food products is designed to increase sales, increase market share and gain a valuable brand reputation in the eyes of consumers. If orders cannot be fulfilled or if companies are concerned about creating another sales ‘peak’ in products with empty shelves there may be some reticence in putting resources into further advertising. However, other food companies consider that this is the time to build that brand association and affection with the consumer by which they may support their brand reputation.
Whilst sporting and other large collective events are cancelled the focus may be on different ways to build that rapport with your customer via for example social media, television and radio. As a result of the lockdown the majority of consumers are staying at home and therefore the consumption of these forms of media are vastly increased.
The individual as reflected in social media choices and so the trend of using advertising there to seek personal relationships with consumers and appeal to their individual tastes has accelerated with lockdown. Food has become more than ever a reflection of lifestyle and personality, which is why we also see adverts creating an association between themselves and a feeling of traditional, familiarity, quality, compassion (for example the McCain 'We are family' adverts.)
The more individual and direct route of delivery and ordering has also accelerated. Supply chains are squeezed between the few big retailers and so we are now seeing many restaurants, pubs, cafes, food business operators and processors of all descriptions adopting to the more direct approach of online ordering as well as linking up with direct delivery services and takeaways whether individually or in partnership.
Although the ‘new normal’ has meant seismic changes throughout society it is still crucial that advertising and marketing is legally compliant and even more importantly does not capitalise or exploit the fear or distress caused by the pandemic or make false or misleading claims on preventing, treating or curing the virus.
In addition, any new venture should ensure appropriate safeguards are in place to protect employees and customers, as well as ensuring the business is protected in any commercial enterprise it sets up either solely or in partnership as liabilities will differ depending on what structure is put in place.
Fear, distress and social responsibility
No advert should exploit an audience’s fear in order to mislead them into buying a product. An appeal to fear to encourage prudent behaviour or to discourage dangerous or ill-advised actions may be considered justifiable; however the fear likely to be aroused should not be excessive. Marketers should also avoid exaggerating potential risks caused by not buying their products, especially if targeting vulnerable consumers.
Any direct or implied claims about coronavirus or COVID-19 should be very carefully considered and prepared with a sense of responsibility to consumers and to society. The Advertising Standards Authority (ASA) has set out that it is ‘unlikely to have any patience for marketers seeking to unfairly exploit the outbreak to sell products or services or otherwise make claims that would be considered socially irresponsible.’
Different consumer products and in particular medicines and medical devices have specific and tightly regulated requirements for making any medicinal or health claim. Food products and supplements have their own specific requirements as well.
Food marketing claims
Where positive ‘voluntary’ claims are made these must be substantiated and/or comply with legislation/guidance – i.e. ‘Free Trade’, ethically sourced, sustainable, ‘organic’ ‘homemade’ ‘traditional’ ‘fresh’ ‘welfare claims’ ‘fished claims’. There are also applicable Country of Origin and place of last substantial processing requirements.
Any health or nutrition claims on food have strict interpretation under Regulation 1924/2006
“Health Claim” means any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health. Only authorised health claims can be made and these are listed in the EU Register associated with the regulation. Foods and supplements are also prohibited from making any claims to prevent, treat or cure human disease.
A non-specific, general health claim [i.e. healthy, detox, super, tonic, elixir, good for you] may be used, only insofar as it is accompanied by a specific authorised health claim. This is where a lot of advertisers of food products fall short of legal compliance.
There is some very limited flexibility to the wording of authorised health claims as long as the same meaning is given to its interpretation by consumers.
Some detail on how the ASA applies the legislation is available here.
Competition & Taking Advantage
On the flip-side to this, anti-competitive practices have been targeted with the Competition and Markets Authority (CMA) referenced reports that a minority of companies in the food and drink and pharma sector were seeking to capitalise on the current situation by charging unjustifiably high prices for essential goods or making misleading claims around their efficacy. Companies are asked to report any such information to email@example.com.
Additionally, the CMA has launched a COVID 19 taskforce against sharp practices such as charging excessive prices or making misleading claims about their products. The taskforce will:
- Scrutinise market developments to identify harmful sales and pricing practices as they emerge.
- Warn firms suspected of exploiting these exceptional circumstances – and people’s vulnerability – through unjustifiable prices or misleading claims.
- Take enforcement action if there is evidence that firms may have breached competition or consumer protection law and they fail to respond to warnings.
- Equip the CMA to advise the Government on emergency legislation if there are negative impacts for people which cannot be addressed through existing powers.
- Enable the CMA to advise the Government on how to ensure competition law does not stand in the way of legitimate measures that protect public health and support the supply of essential goods and services. It will also advise on further policy and legislative measures to ensure markets function as well as possible in the coming months.
This is a time where what is said about a food product and what a brand is felt to stand for will resonate with consumers and influence them for a long time to come. There may be a great opportunity for food businesses to really gain consumer trust and market share, but equally it is vital not to be deemed to mislead or exploit your customers/market position.
For advice on any aspect of the above or for further and more up to date information please do not hesitate to contact Jessica Burt on Jessica.Burt@mills-reeve.com.