RPC Bites Christmas Bumper Issue #53 - is turkey off the menu this Christmas? Government sugar reduction targets not met amid HFSS delays

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 and Happy Christmas and New Year to all of our readers!!

HFSS delay yet again

In Issue 47 of RPC Bites we reported that the Government was delaying the introduction of a ban on volume price promotions of HFSS products and free refills for soft drinks for a year until October 2023 and that the advent of a 9pm watershed for TV and paid-for online ads in relation to HFSS products had been delayed until January 2024.

However, the Government has now confirmed that regulations which will prohibit television programme services and on-demand programme services from featuring advertisements for identifiable HFSS products between the hours of 5.30am and 9.00pm, as well as prohibiting all paid-for advertising of HFSS products online, will not come into force until October 2025. Despite receiving backlash from health campaigners for its delay, the Government has defended its decision, stating that businesses need time to prepare for the new regulations.

The Government has also launched a consultation seeking views on the draft regulations and is specifically looking for feedback in relation to secondary legislation in the following areas:

• Defining the products in the scope of the advertising restrictions;
• Defining food and drink small and medium enterprises for the purposes of the SME exemptions; and
• Defining services connected to regulated radio to ensure that the exemption for radio services covers online services provided by commercial and community radio broadcasters.

Respondents to the consultation can provide their views up until 31 March 2023 by completing this online survey or by emailing any comments to childhood.obesity@dhsc.gov.uk.

Extended freeze on alcohol duty

Last year's autumn budget announcement announced a radical overhaul to alcohol duty in the UK, including a freeze on the duty until February 2023. Now, in welcome news for the drinks and hospitality industry, the Government has announced that the freeze will be extended for a further 6 months until 1 August 2023. However, a revised duty rates decision is to be announced in Jeremy Hunt's spring budget which is set to be delivered on 15 March 2023, although any changes would take effect from 1 August 2023.

Exchequer Secretary to the Treasury, James Cartlidge said that the announcement reflects the Government's, "commitment to responsible management of the UK economy and supporting hospitality through a challenging winter" and that the Government's plans were "designed to provide certainty and reassure pubs, distilleries, and breweries as they face a challenging period ahead".

Traditional French Baguette granted protected status by UNESCO

UNESCO has granted protected status to the "artisanal know-how and culture of baguette bread", recognising it on its 'List of Intangible Cultural Heritage'. UNESCO defines intangible cultural heritage as "traditions or living expressions inherited from our ancestors and passed on to our descendants". Other foods or important culinary cultural traditions to have made it onto the list include traditional Chinese tea making and the making of Neapolitan pizza.

The traditional baguette can be made using only flour, water, salt and yeast or leavening. UNESCO has stated that this designation will help to make sure that this artisanal way of making bread is passed down to future generations. UNESCO's granting of this protected status comes at a time when daily bread consumption is reported to have declined in France, with l'Observatoire du Pain reporting that the average daily consumption of bread among French adults dropped to 103g per day in 2016 from 143g per day in 2003.

Thatchers takes on Aldi's own-brand cloudy lemon cider

Thatchers has issued High Court proceedings against Aldi for trade mark infringement and passing off in relation to its Cloudy Lemon Cider product, which is protected by this UK Trade Mark owned by Thatchers. Thatchers alleges that Aldi's Taurus branded 'Cloudy Cider - Lemon' is "highly similar" to its own product and in designing the Taurus branded cider Aldi has "intentionally mimicked" the Thatchers product. The two products are pictured side by side below.

Thatchers claims that the overall appearance of the Aldi product, including the way in which the Taurus brand name is presented in block capitals in the middle of the can on a background similar in colour to the Thatchers product along with the fact that 'Taurus' begins and ends with the same letters as 'Thatchers', is likely to cause a link between the two products and the Thatchers Trade Mark in the minds of consumers, thereby encouraging consumers to buy the Aldi product. It also claims that the graphics on Aldi's products and packaging are likely to cause confusion on the part of the public and an association with the Thatchers Trade Mark, whilst also allowing Aldi to take unfair advantage of the reputation and distinctive character in Thatchers' Trade Mark.

Among other remedies, Thatchers is seeking an injunction to prevent Aldi from continuing to sell its Cloudy Cider – Lemon and damages in the sum of £500,000. As readers will know from our coverage of the Colin v Cuthbert debacle, this is the latest in a line of disputes involving Aldi and alleged copycat products and we will provide further updates as the proceedings progress.

Avian flu outbreak could take Turkey off the menu this Christmas

The Chief Executive of the British Poultry Council has issued a warning over the potential supply shortage of free range turkeys this Christmas. 600,000 of an estimated stock of 1.3m free range birds are reported to have died due to an outbreak of a new, more infectious strain of avian flu which has had devastating impacts on free range flocks, as these are more prone to infection from wild birds.

The virus has already resulted in the culling of an estimated 1.6m of the 11m turkeys farmed in the UK. Some butchers have warned customers that they may not receive their Christmas turkey orders and are offering a refund or substitute product instead. However, Defra has been keen to emphasise that it is only the supply of free range birds that is under threat ahead of the holiday season and has sought to reassure consumers that there will still be a plentiful supply of turkeys this Christmas.

Government's target to reduce sugar by 20% flops

The Office for Health Improvement and Disparities has released a report this month which revealed that, between 2015 and 2020, the food industry has only achieved a 3.5% reduction in sales weighted average total sugar per 100g in products sold between 2015 and 2020. The report also revealed that the total tonnage of sugar sold in the categories included in the report had increased by 7.1% between 2015 and 2020.

Although larger than average reductions were reported for certain product categories such as breakfast cereals, yoghurts and sweet spreads, the average 3.5% reduction across categories falls far below Public Health England's target of 20%.

The report also highlighted that although the weighted average sales of sugar in products covered by the Soft Drinks Industry Levy (i.e. drinks containing more than 5g of sugar per 100ml) had dropped by 46% over the period, the overall sales of drinks subject to the Levy increased by around 21%.

In the wake of the report, Health campaigners are calling for further taxes beyond the Soft Drinks Industry Levy to be introduced on products high in sugar, as they point to the report as evidence of the Government's failed ambition for the food industry to voluntarily reduce sugar.

MixPixie's 'Prescription Gin' falls foul of Portman Group Code of Practice

In a cautionary tale for drinks manufacturers trying to create novelty branding for their products, MixPixie has been forced to discontinue its 'Prescription Gin' and design a new label for the product following a complaint about a Facebook ad promoting the gin.

Sold in a brown bottle with a label bearing a green cross (as would typically be seen on medicines sold in pharmacies) MixPixie's products appear to resemble a medicine bottle. The ad in question read, "Dosage: Take ONE swig before each exam. GOOD LUCK". Interestingly, MixPixie highlighted that the "dosage" labelling on the product was a customisable element, but the Portman Group Panel confirmed that MixPixie was still responsible for the entirety of the product, including the customisable label which it knowingly prints.

The Portman Group considered that the product breached rules 3.2(f) and 3.2(j) of the Naming, Packaging and Promotion Code of Practice:

• In breach of rule 3.2(f), the product encouraged irresponsible, immoderate or illegal consumption of alcohol. The Portman Group panel found that the message, "Take ONE swig before each exam" could encourage irresponsible drinking, and that the bottle's appearance and the use of the green cross sign were irresponsible as these mimicked the image of prescription medicine and implied that an alcoholic drink was something to be prescribed to make the drinker feel better. Use of the phrase "please drink responsibly" on the label was insufficient to counteract the overall impression conveyed to consumers.
  
  
• In breach of Rule 3.2(j), the product suggested that it had therapeutic qualities, could enhance mental or physical capabilities, or change mood or behaviour. According to the Panel, the product clearly and deliberately intended to replicate a prescription medicine bottle and thus imply that the product was synonymous with medicinal and therapeutic qualities. Wording on the front of the bottle stating that "possible side effects: may include extreme, relaxation, giddiness and happiness" was found to directly suggest that the product could change the consumer's mood.

Percy Pigs v Pig's Mugs as M&S sues Swizzels

M&S is back in court following its settlement with Aldi in relation to its copycat caterpillar cake (as reported in Issue 48 of RPC Bites) and its ongoing proceedings against Aldi in relation to its copycat Gin (as reported in 2022's New Year Bumper Edition of RPC Bites). This time, the luxury supermarket has filed a joint trade mark infringement claim with Katjes Fassin (the German confectionary manufacturer who licences the Percy Pig Trade Marks to M&S) against sweet manufacturer Swizzels Matlow.

M&S and Katjes allege that by manufacturing and selling its "pig's mugs" sweets, the shape and appearance of which are identical to their own Trade Marks, and affixing "pig's mugs" signs to other confectionary products, Swizzels are infringing their Trade Marks. M&S and Katjes claim that the similarities between the pig's mugs products / sign and M&S' licensed Trade Marks for Percy Pigs are likely to cause consumers to be confused into believing that Pig's Mugs are Percy Pigs.

M&S are seeking an injunction against Swizzels to prevent them from selling the products, an order requiring the destruction of any infringing products and damages. Keep reading RPC Bites for further updates on this claim as the proceedings progress.

Average Christmas dinner prices soared in the UK

Research conducted for the BBC by Assosia has shown that the cost of a basic Christmas dinner for five people has sharply increased by nearly 22% since last year. The average price of a Christmas dinner consisting of the usual festive trimmings: a medium-sized frozen turkey, stuffing, brussels sprouts, roast potatoes, pork chipolatas, onion gravy and mince pies for dessert has increased to £30.03, up from £24.67 last year.

The sharpest price rise was for chipolata sausages, with the average price for a packet of 12 rising by 42.7% to £2.13. Potatoes and frozen turkeys were also found to have increased sharply in price, having risen 32.9% and 21% respectively.

It may not be all bad news, however. Some have pointed towards the discounts offered by supermarkets in the week before Christmas last year to suggest that shoppers may benefit from last minute discounts this year and some supermarkets are selling frozen family Christmas dinners for £25 (Tesco) and £22 (Asda).

Asda guarantees cheaper prices for refill products

After research jointly produced by Wrap and Unilever highlighted that one of the key customer participation barriers to refill services was price, Asda has announced its new 'refill price promise' in a bid to remove this barrier and encourage consumer uptake in relation to refill services. Asda's price promise guarantees that purchasing products that are part of its refill service will be cheaper than purchasing packaged alternatives.

Asda's refill service allows customers to fill a refillable bag with refillable products such as cereal, pasta and even chocolate buttons and pet food. The rationale behind the service is to allow shoppers to buy only as much as they need, saving them money in the wake of the cost-of-living crisis, whilst also cutting back on packaging waste by encouraging customers to move away from packaged products.

Asda isn't the only supermarket to offer a refill service, with the likes of Sainsburys, Waitrose and Morrisons all adopting zero-waste refill aisles.