Food & Agri Update – Friday 5 May – Coronation & 'Marketing' Edition

Marketing Special

High street retailers are reporting a “coronation effect” sales boost as shoppers make a last-minute dash to the shops to stock up on party food including champagne and cakes for this weekend’s.  A number of well known brands have created their own souvenir editions ie Lyle’s Golden Syrup ‘Long Live the King’ tin.  Public ’to spend £1.75bn on coronation’ (Sky News).

Intention not to divide

The world’s biggest brewer Anheuser-Busch has been in the news for its Bud Light marketing “campaign” featuring Dylan Mulvaney.  The Chief Executive published a letter stating; ‘We never intended to be part of a discussion that divides people.’ 

Whilst regulatory checks on advertising and marketing can show a campaign is correct a further corporate check should be undertaken as to how the public consciousness may react and if there may be any sectors of society that may then negatively focus on the brand.

KIT KAT use of nutritious claim

Nestlé has withdrawn claims over its new Kit Kat breakfast cereal, after tweets challenging their marketing from ex-National Food Strategy lead, Henry Dimbleby.

Nestle described the product as “tasty and nutritious” and pointed to its content of B vitamins and minerals.  The product, which launched in the UK in March, is made with a milk chocolate-flavoured coating, as well as calcium and iron, It provides 126 calories per 30g serving, with 11 servings per pack.

However, in a tweet Henry Dimbleby described this as a “joke”.  “Tasty and nutritious..This really is taking the p@@@.” Further, it was not credible to claim that most people consumed only 30g per serving.

A Nestle spokesperson reportedly countered:

“The word “nutritious” was not used in the UK advertising and marketing of the Kit Kat Cereal product. Instead it was and continues to be described as a “an occasional, indulgent breakfast option, that can be enjoyed as part of a balanced diet”.

“The product is a global product which has launched first in the UK. The global website copy of the product, which is where confusion has stemmed from, has been amended and the word ‘nutritious’ is not used in relation to the product.”.

Caterpillar cakes

The Caterpillar cake case is still providing Aldi appears with PR success and captured the attention and imagination of the public.

Aldi UK has reignited the caterpillar cake row with a TV advert comparing the price of its Cuthbert cake to M&S’ Colin the Caterpillar one.

The discounter’s latest ‘Like Brands, Only Cheaper’ advert, which debuted on 1 May with teasers appearing on social media ahead of its release, shows a group of people dressed like caterpillars having a tea party. Notably, the caterpillars in attendance are named after other supermarket caterpillar cakes – with Asda's 'Clyde', Tesco's 'Curly', Sainsbury's 'Wiggles', or Waitrose's 'Cecil'.  To add to the mix, that Asda has brought out a special version of its chocolate log cake named Letty the Coronation Caterpillar.

Further, M&S designed a new version of its cake to celebrate King Charles' Coronation - to include a gold crown on top of Colin's head.  Aldi responded on twitter: "Cancel the crowns, CANCEL THE CROWNS!"

Companies will seek to protect, as trademarks, certain signs that help them distinguish their products and services from those of their competitors, such as brand names, logos and slogans. Along with patents (which protect innovative technical solutions) and copyright (which protects creative or intellectual works such as books and music) as a form of intellectual property.

In April 2021 M&S launched legal proceedings to protect its intellectual property and get Aldi to remove the product from its shelves. M&S claimed that the similarity between the two cakes would lead consumers to think that they were of the same standard, thereby allowing Cuthbert to ride on Colin’s coattails.  Infringement of M&S trade marks for the word mark COLIN THE CATERPILLAR and for a two dimensional image of the Colin cake within its packaging, as well as passing off, which can protect the look and feel of a product or its 'get up' was alleged. 

The agreed settlement between the two parties means there was no court judgement on the facts.

Border Target Operating Model – Consultation ends 19 May

The draft Border Target Operating Model (BTOM) has been set out by the government in April 2023. It proposes a new global regime for imported food and feed products entering the UK.  The consultation closes on the 19 May 2023. The Border Target Operating Model: Draft for Feedback - GOV.UK (

The FSA has engaged extensively with the lead government departments; the Cabinet Office, DHSC and Defra, as well as the Devolved Governments, to ensure food and feed safety and consumer protection remains at the heart of the proposals.

The draft proposals mean that from October 2023:

  • controls will be phased in, starting with health certification for higher risk imported food and feed from the EU
  • as now, authorities will be notified of products that may pose a higher risk (most animal products and plant based high risk food and feed) entering the country, allowing for targeted checks on products of concern
  • the level of checks at the border will be risk-based, based on the food safety risk posed to the consumer
  • all food and feed products entering the UK will have proportionate controls along the whole production and supply chain, farm to fork

FSA Chair, Susan Jebb said:

"Last year the FSA’s annual report on food standards concluded that establishing full UK import controls for high-risk food and feed from the EU by the end of 2023 must be a priority. This reflected our concern that the longer the UK operates without assurances that EU products meet our high safety standards, the less confident we can be that we can effectively identify potential safety incidents

FSA Pledges x3 actions on New Approach to Whistleblowing

1. FSA Chief Executive Emily Miles, in a message to stakeholders, has promised a review into the scope for “a single telephone number or website that whistleblowers can contact to report concerns about food businesses”. 

There are currently multiple telephone lines run by industry bodies, as well as 'Food Crime Confidential' run by the FSA so it is as yet uncertain what new format this might take.

2.  Emily Miles added the FSA would look to strengthen the role that third-party audits – used by retailers and manufacturers to check their own supply chains – can play in passing on information to regulators to help prevent food fraud. 

This would certainly be an interesting expansion on the remit of the audit especially where it may go beyond a food safety notification and would represent a significant expansion of reporting obligations.

3.  Finally, the FSA planned to look at “the best format and mechanism” for it to share intelligence-based alerts to better warn businesses about problems in supply chains.

Recall - Listeria

Müller and Lactalis McLelland have become the latest suppliers to recall a raft of dairy products due to concerns over the presence of listeria monocytogenes.

Müller has pulled six Cadbury-branded desserts it manufactures under licence from Mondelez due to contamination concerns. In a statement, Müller said the recall was an “isolated incident”, while it was undertaking an “extensive investigation” into the outbreak.

FSA head of incidents Tina Potter said the recall was “a precautionary measure because although listeria has not been found in the product itself, it was found in a product manufactured in the same production environment, and it is therefore possible that the recalled products may be contaminated”.

Lactalis UK & Ireland’s British cheese division Lactalis McLelland, meanwhile, has recalled four goats cheeses over similar contamination concerns.

The supplier also said the recall was “precautionary”, and since implementing the recall, it was “satisfied that all lab results have tested negative for listeria” .

“We rigorously test all our products and can confirm that there have been no other batches affected,” said Lactalis McLelland group MD Mike Chatters.

(As reported in the Grocer.)

The recalls mark the latest in a growing line of dairy products to have been pulled from sale over listeria concerns this year. They also represent the use of an assumption that all batches are affected where there has been a positive indication unless or until this is proved to the contrary.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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