RPC Bites #50 – potential HFSS U-turn, hard seltzers under fire again and AU Vodka v NE10 Vodka

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!!

We're back! – After a long hot summer, RPC Bites is back to celebrate its 50th issue with a bumper edition for Autumn. 

The Bites Team was pretty busy over the summer: The Second Edition of the Food, Beverage and Cosmetics Law Review (which the team authored the UK chapter of) is due to be published imminently and last month, RPC acted as the exclusive legal sponsor of the Low2NoBev Show at Olympia London. Co-head of RPC's Food and Drink Group, Ciara Cullen sat down with panellists from Budweiser Brewing Group (UK&I) to discuss the role that ESG plays in leading and growing the drinks category. She was then joined by Sarah Mountain and Sam Coppard, who delivered a practical brand protection session on the rise of "copycat" products.  Check out pictures of the highlights below.

Potential U-Turn for the Government's anti-obesity policy

The HFSS saga continues – in Issue 47 of RPC Bites, we reported on the year-long delay to HFSS restrictions relating to volume price promotions, free refills for soft drinks and a 9pm watershed for TV and paid-for online ads.

Although restrictions on the placement of HFSS products at aisle ends, store entrances, checkouts and online equivalents have gone ahead as planned this month, it has recently been reported that the Treasury has launched a review of England’s anti-obesity strategy as part of a wider deregulation initiative. This could lead to further delays to, or even a complete abandonment of, the remaining HFSS restrictions.

Rumour has it that the upcoming HFSS restrictions aren't the only anti-obesity measure facing a potential 'rollback'. Both the Guardian and the BBC have reported that the Government is also reviewing the Soft Drinks Industry Levy (aka the 'Sugar Tax') and the very recently introduced menu calorie labelling requirements.

Whilst the review is said to be an attempt to curb the current cost of living crisis, it has received negative feedback from health campaigners who are unconvinced that deregulation would alleviate the crisis and believe that scrapping the restrictions could, in fact, lead to serious long-term public health consequences.

Although the Government has yet to confirm whether the review will take place, 70 organisations have already signed an open letter to the Prime Minister urging her to reconsider (albeit with yet another Government shake up imminent, all bets are off!).

The ASA calls time on Whisp's hard seltzer advert…again

Hard seltzer retailer, Whisp Drinks, has once again found itself in hot water with the ASA. In our 2021 Summer Bumper Edition, we reported that Whisp had been reprimanded by the ASA for making prohibited health and nutrition claims in relation to its seltzer. 

Now, the ASA has upheld 3 complaints concerning an Instagram ad which read: “Not sure when to crack open a Whisp? With 4% ABV, think of it as the same as drinking a beer - we're for anytime you need a drink. Drink one, and it's a refreshing and relaxing can. Drink loads, and you will get drunk. The only difference - you'll be hungover from a beer, but you won't with Whisp."  The ASA found that:

1. By stating that consumers would not get a hangover when drinking Whisp's seltzer, the brand was claiming that the product could prevent, treat or cure human disease - such health claims (and indeed all health claims relating to alcohol) are prohibited under the Cap Code.
2. The ad's reference to alcohol as a "need" combined with product descriptors such as "refreshing" and "relaxing" was irresponsible as it suggested that alcohol might be therapeutic and therefore implied that alcohol may be indispensable in breach of Rule 18.6. Further, the line "drink loads and you will get drunk" was found to irresponsibly promote excessive drinking, in breach of Rule 18.1 and to irresponsibly suggest that Whisp's seltzer should be preferred due to its intoxicating effect, in breach of Rule 18.9.
3. The claim "with 4% ABV, think of it as the same as drinking a beer" was a nutrition claim. As reported in previous issues of RPC Bites, these types of claim can only be made in relation to low alcohol products and then only to denote products as 'low alcohol', 'reduced alcohol' or 'reduced energy'.

Whisp chose to withdraw the Instagram ad before the ASA published its decision and the ASA warned the retailer against running similar ads in the future.

Dis-spiriting outcome for AU Vodka in interim injunction application

Vodka brand, AU Vodka (AU), has recently had an application for an interim injunction refused by the High Court. Had it succeeded, the injunction would have restrained the marketing and sale of a new vodka range by one of AU's competitors, NE10 Vodka Ltd (NE10), which AU claimed infringed its existing product lines.

AU typically sells vodka in gold metallic bottles. When NE10 launched vodka products in metallic grey, blue and pink bottles, AU sought to injunct them from doing so, on the basis that the get-up was deceptively similar to AU's products, amounted to passing-off. AU claimed that it had generated substantial goodwill in the design features of its vodka bottles (including the shape, the metallised colour and various other features).

Whilst the Judge acknowledged that "there is plainly a serious issue to be tried on passing off" and ordered an expedited trial (to take place in January 2023), he refused to grant an interim injunction, finding that:

1. Although AU may suffer some irreparable harm if deception was, in fact, occurring, the evidence submitted suggested that the effect would be small and therefore, damages were considered an adequate remedy for AU. However, damages would not be an adequate remedy for NE10 as the momentum of its launch campaign would be lost; and
2. The balance of convenience slightly favoured NE10 because its products were already on the market.   

The Judge also noted that the 'consumer confusion' evidence adduced by AU was, in fact, indicative of consumers observing similarities between AU and NE10's products, rather than actually confusing them.

We will be closely awaiting next January's judgment and will provide updates in subsequent issues of RPC Bites. 

Ban for Bill's "Bottomless" Ad

Brunch stalwart Bill's has been reprimanded by the ASA over adverts for "Bottomless prosecco" that went out during the July 2022 heatwave. The offending ad, which featured in marketing emails sent out by Bill's and on the restaurant group's website, featured the heading "Enjoy Bottomless Prosecco This Heatwave Weekend". The strapline was accompanied by a subheading that included the words "enjoy 90 minutes of unlimited prosecco for just £16.50 per person".

Complaints were made against the advert on the basis that it was socially irresponsible for encouraging excessive consumption of alcohol. The ASA considered these complaints and decided that whilst the ad did take a relatively neutral tone, the reference to the consumption of "several" glasses of prosecco may condone excessive drinking. In the ASA's view "several" would be construed as "at least three glasses" in the 90 minute period and was suitably vague that consumers might lose track of their alcohol consumption.

In addition, the fact that alcohol was being presented as a way to cope with a heatwave was dangerous in circumstances where health warnings had been issued to the public.

Bill's submitted that it was not a chain that the public generally associates with being purely "drink based", and therefore consumers would not associate the ad with excessive alcohol consumption. However, Bill's accepted that the ad could have been understood as encouraging alcohol consumption in hot weather, which was not advisable. Bill's will run future ads with a non-alcohol option presented alongside any alcohol, and with a clear link to the Drink Aware website.

'Beer fear' for UK brewers

British brewers have warned of the possibility of beer shortages this Christmas as a result of the ongoing CO2 shortage following the temporary closure of CF Industries' Billingham Plant. The plant (which is the largest ammonia plant in the UK) was first forced to close last September as the Government stepped in to meet its running costs. Now, soaring energy costs have forced the plant to close again, leaving brewers who rely on CO2 to carbonate their beers in the lurch.

Other CO2 producers have been forced to impose significant price increases or warn their customers that they cannot guarantee a supply of CO2. Invoices seen by Just Drinks showed that some suppliers had increased their CO2 surcharge by over 580%, whilst the British Beer and Pub Association reported that some brewers had witnessed week-on-week price increases of over 400%.

After a turbulent few years owing to the COVID-19 pandemic and Brexit, brewers are feeling the pinch yet again and the Government understandably faces growing pressure from industry and will need to act quickly to secure CO2 supplies.

Government food strategy branded "hot air" by campaign group 

Lawyers acting for the sustainable food system campaign group, Feedback, have launched judicial review proceedings against the Government in relation to the alleged unlawfulness of its 13 June 2022 Food Strategy (which can be found here). 

Feedback claims that the Food Strategy fails to implement the necessary measures "to reduce meat and dairy production and consumption, contrary to the recommendations of its own expert climate advisers". This includes the Climate Change Committee (CCC) (an independent, statutory body established under the Climate Change Act 2008) and Henry Dimbleby who published the Government commissioned National Food Strategy in July last year. Feedback also claims that the Environment Secretary, George Eustice has breached the Climate Change Act by failing to ensure that the CCC's advice was accounted for in the Food Strategy.  

We eagerly await the Government's response to Feedback's claim and will be sure to report on this in future issues of RPC Bites.   

Cease and desist over "taqueria" 

Taqueria Worldwide Limited (Taqueria Worldwide), owner of Taqueria Restaurants in Exmouth Market and Notting Hill, has served London Fields' taqueria, Sonora (Sonora) with a cease and desist letter alleging trade mark infringement. 

Taqueria Worldwide has registered trade marks for 'TAQUERIA', in plain text and stylised form.

Sonora's owners say that they intend to defend the allegations, asserting that "taqueria" is a generic, descriptive and non-distinctive word, which simply denotes a Mexican restaurant specializing in tacos. 

The case is at a very early stage and we will continue to monitor and report on its progress in subsequent issues of RPC Bites. 

European PE firm hungry for Eataly

European private equity firm, Investindustrial has announced that it will acquire a 52% stake in Eataly with an investment of €200m and share purchases from existing shareholders. Eataly, seller of high-quality Italian produce currently has 44 outlets in 15 countries including the UK. Although its revenues were hit by the COVID-19 pandemic, it has forecast a turnover of €600m this year.

Investindustrial reportedly sees the growth potential in the luxury Italian food sector and plans to expand the business globally by opening new flagship stores and developing novel store formats to diversify the company's offering. It has also stated that any growth or development of the business will continue to emphasise Eataly's focus on sustainability.