RPC Bites #55 - BrewDog gold can competition strikes again and Miller High Life cans crushed by Belgian customs

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!!

A crushing end for Miller High Life cans at Belgian customs

2,352 cans of Molson Coors Beverage Co's flagship beer, Miller High Life, have been seized and destroyed by Belgian Customs after a request by the Comité Champagne, the joint trade association for the Champagne industry.

Miller High Life has been sold in the US since 1903 with the slogan "The Champagne of Beers". However, the Comité Champagne asserted that the slogan infringed Champagne's protected designation of origin in the EU, which ensures that the term can only be used to describe produce from the Champagne region that has been produced in accordance with specific rules. As a result, the Comité Champagne worked together with the Belgian customs authorities to seize and recycle the cans and their contents. It is currently unclear why the cans made it onto EU soil as Molson Coors Beverage Co confirmed that it does not export Miller High Life to the EU.

The news demonstrates the robust nature of the EU's system of protected geographical indications.

Toblerone forced to axe the Matterhorn mountain peak

The confectionary giant, Mondelez and owner of the popular Swiss chocolate bar, Toblerone has recently announced that the Matterhorn Mountain peak, which has been depicted on Toblerone's packaging since 1970, will be removed. The label change is a result of the movement of production of the notorious pyramid shaped chocolate bar from Switzerland to Slovenia, as Swiss law strictly monitors the circumstances in which indicators of Swiss provenance can be used in foods, industrial products and services.

According to Swiss legislation, milk and milk-based products can only be labelled as "made in Switzerland" if 100% of the ingredients are obtained from Switzerland (except those such as cocoa that can only be sourced abroad) and most of the production process takes place in Switzerland. As such, Mondelez must remove the image of the Matterhorn Mountain peak from Toblerone's packaging and change the "of Switzerland" claim on its packaging to "established in Switzerland".

A spokesperson for Mondelez has reassured Toblerone fans that its new packaging will "draw further inspiration from the Toblerone archives and the inclusion of [its] founder, Tobler's, signature".

Lidl triumphant in Tesco trade mark dispute

In Issue 52 of RPC Bites, we gave an update on the trade mark infringement, copyright infringement and passing off proceedings issued by Lidl against Tesco, in 2020, in relation to Tesco's use of a yellow and blue sign to promote its "Clubcard prices". Lidl claimed that Tesco's use of the sign (on the right, below) infringed one of its trade marks, which features a yellow circle with a red outline on a blue square background (on the left, below).

Last week, the High Court found in favour of Lidl, noting that “Tesco has taken unfair advantage of the distinctive reputation which resides in the Lidl [logo] for low price (discounted) value”. Tesco's conduct was slightly atypical in terms of what we expect to see in infringement cases as whilst Tesco wasn't attempting to deceive consumers into thinking that it was Lidl, by adopting a get up (i.e. the blue and yellow logo) which already had a proven association with a strong value proposition in the minds of consumers, infringement was nevertheless found.

Tesco has announced its intention to appeal the decision and has said that it intends to seek the court’s permission to continue using its sign until those proceedings are concluded. Whether permission will be granted remains to be seen.

A Huel-ing ordeal for Huel as it falls foul of ASA rules

Nutritionally complete meal replacement manufacturer, Huel has been ordered to amend two ads which appeared on the company's Facebook page and website last year. The offending ads read:

1. “Huel helps keep money in your pockets. An entire month’s worth of Huel works out at less than £50. Huel isn’t just the healthy option with perfectly balanced protein, carbs, fats and fibres, it’s the smart option too…"WANT TO SAVE MONEY ON FOOD? … 34 MEALS FOR £1.51 PER MEAL… All The Nutrients You Need. 1 Meal”
2. "FIVE WAYS TO SAVE MONEY ON FOOD … Eating healthily doesn’t need to break the bank – read on for five ways you can save money on your food … Embrace Processed Food & Meal Replacements … while we’ll never call Huel a meal replacement, it is often thought as such in this context. Huel is another great example of processed food being able to help you save money on food”.

The ASA found that in proposing meal replacement products as a way of saving money on food, (particularly at a time of worsening financial crisis) the ads were irresponsible and misleading. According to the ASA, consumers would interpret the first ad to mean that a month's worth of Huel could be purchased for £50 and replace an entire month's supply of "traditional" meals i.e., 3 meals a day, which was not the case – the costs saving was based on consuming 1 Huel product a day – a clarification which was not made sufficiently clear to the consumer.

As the second ad was followed by commentary on how processed frozen and tinned foods compared nutritionally to their fresh or dry equivalents, the ASA found that the ad implied that Huel would save consumers money each month in the same way that processed fresh and frozen foods would, and therefore the comparison being made was between Huel products and "traditional" meals. Since an adult would need to consume between 5 and 6 Huel portions a day to obtain their recommended calorie intake (which would cost c. £350 a month), Huel had failed to evidence that this would provide consumers with a monthly cost saving against traditional meals.

The ASA also found that by advertising Huel meal replacements as a "healthy option" for consumers, Huel was making a general health claim, which was not accompanied by a specific authorised health claim, in breach of CAP Code Rule 15.2.

Honey fraud: A sweet crime with bitter consequences

Honey fraud – whereby honey is adulterated with cheap sugar syrups or other substances, or when its origin is mislabelled or hidden – has become a serious problem for consumers, beekeepers, and the environment. According to a recent investigation by the European Commission, almost half of the honey samples tested from 18 countries were suspected to be fraudulent, and all 10 samples from the UK failed the authenticity tests. This means that many UK shoppers may be buying honey that is not pure, natural, or traceable to the beekeeper. Honey fraud not only deceives consumers and undermines honest producers who are competing with fraudsters selling at reduced prices thanks to cheaper, illicit ingredients, but also harms the environment by reducing the demand for local honey and threatening the survival of bees and other pollinators.

The EU is considering new rules to improve consumer information for honey and ensure the country of origin is clearly identified on the jar. British beekeepers are calling for the UK government to implement its own rules to ensure better transparency and quality for honey. The BRC has stated that they collaborate with suppliers to verify the quality and origin of honey, performing frequent tests to confirm that the honey matches its description and endorses the continuous development and standardisation of methods to improve the identification of impure honey.

Primark X Greggs

Primark and Greggs have announced another collaboration following their initial alliance back in 2022. The newest partnership aims to offer consumers a convenient and affordable way to enjoy both fashion and food under one roof. In addition to another exclusive fashion collection, a new "Tasty by Greggs" café has opened in Primark’s Newcastle store, following the success of the first two openings in Birmingham and London Oxford Street’s (East) Flagship store. As expected, Tasty by Greggs offers a range of Greggs favourites, including its famous sausage rolls and pasties, vegan snacks and sweet treats.

The collaboration is part of Primark's strategy to enhance its consumer experience and offer more in-store services. It is also an opportunity for Greggs to reach a new customer base and expand its presence in high-street locations – the future of the traditional bricks and mortar retail experience continues to evolve.

Fraud Advisory Panel report warns of counterfeit alcohol products

The Fraud Advisory Panel has released a report setting out the significant financial impact of counterfeit goods on the UK food and drink sector. By way of example, the report estimates counterfeit alcohol to result in £200m worth of lost sales every year for food and drink businesses, with HMRC losing £1.2bn in VAT and alcohol duty between 2020 and 2021.

The Panel highlighted that a particularly lucrative area for criminals is the production of fake bottles of wine – counterfeit bottles of wine can be surprisingly easy for organised groups to produce by using a special tool to empty and refill a legitimate bottle of wine without disturbing the cork. The apparent profitability of producing fake high-end bottles of wine has enabled groups of organised fraudsters to spend six-figure sums on label printing machines (the same sums spent by legitimate producers), making it considerably harder to identify counterfeit goods.

The report also spotlighted the issue of counterfeit spirits which, in addition to deceiving consumers and bypassing legitimate sales, are often dangerous. Fake spirits have been found to contain methanol instead of ethanol, rendering them toxic not only to consumers, but also perpetrators following the death of five people in an explosion at a bootleg vodka distillery in Leicester in 2018.

BrewDog's "gold" can competition strikes again

In Issues 39 and 54 of RPC Bites, we reported on what we referred to as BrewDog's "24 carat faux pas" – a social media campaign offering consumers the opportunity to win "solid gold', 24-carat" cans of BrewDog worth £15,000 each. However, when the cans turned out to be gold plated, consumer complaints to the ASA were upheld and BrewDog's CEO, James Watt personally offered the prize winners £15,000 apiece.

Fast forward 3 months and BrewDog has revived the competition, this time offering consumers the chance to win £5,000 in cash if they find one of a limited number of "gold plated" BrewDog cans. Hoping to avoid the blunder of the initial competition, this time round marketing materials specifically note that the cans are "gold plated" and James Watt himself has confirmed the same.