RPC Bites #61: Trade mark trouble for Tony's Chocolonely, ASA scalding for Jack Daniels but Hovis fare better and FSA guidance on vegan labelling

Welcome back to RPC Bites. Our aim in the next 2 minutes is to provide you with a flavour of the 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.

The colour purple results in an injunction for Tony's Chocolonely

In Germany, confectionary giant, Mondelez has obtained an injunction against Tony's Chocolonely to prevent its use of a specific shade of purple packaging which (on Mondelez' case) infringes trade marks protecting its Milka brand.

The Tony's packaging (launched as a limited edition in Germany and Austria) was one of four designs in which Tony's appears to have taken inspiration from the packaging of widely recognisable chocolate bars such as Milka, Ferrero Rocher, Kit Kat and Twix in order to raise awareness of exploitation on cocoa farms. Tony's explained on LinkedIn that its bolshy campaign was intended to raise awareness of the low rates of living income prices for cocoa farmers amongst big chocolate companies and the impacts of this on forced child labour.

Although Tony's has indicated that it will appeal the injunction, the brand has been made to rework its packaging to a greyscale wrapper, quipping: "After spending way too much time with people in suits (aka lawyers), we launched a brand new grey bar that’s definitely, totally, 100% not purple – all within 24 hours."

There are conflicting take-aways from this saga: whilst trade mark owners understandably won’t hesitate in taking legal action to protect their beloved brands, their opponents will sometimes regard publicity on key issues as worth the infringement risk (and the public, often via social media, may well agree, placing brand owners in somewhat of a Catch 22!)

Hovis' artisanal-inspired bread saved by the ASA 

3 complaints made by the Real Bread Campaign (Sustain) against bread maker, Hovis in relation to claims made in the advertising of its new rustic bloomer loaves have not been upheld by the ASA. The complaints were threefold:

1. "Rustic", "authentic" and traditional": the ASA considered the bread to be: (i) "rustic" because its baking process resulted in a less uniform shape; (ii) "authentic" given it's authentic bloomer shape; and (iii) "traditional" as the bread was made with a starter dough which is one of the oldest form of cooking in human history. In all three cases, the ASA found that consumers would, at the same time, understand that the bread was mass-produced and would not therefore be misled into thinking the loaves were a niche, artisan product (as Sustain implied).
2. "Artisanal-inspired bread": Hovis argued that "artisanal-inspired" was very different to "artisanal", and the ASA agreed, finding that consumers would not interpret the claim to mean the bread had been handmade by artisan bread makers. The standard of "artisanal-inspired" was reached by virtue of the bread having fewer additives, using starter dough in addition to yeast, and not using the more common "Chorleywood high speed mixing process" for mass-produced bread products.
3. "No artificial preservatives": the ASA recognised that this claim was factually accurate because although the bread did contain artificial additives (which were clearly labelled in the ads), it did not contain any artificial preservatives.

In its ruling, the ASA stressed its understanding that consumers recognise that household branded products sold in supermarkets are mass-produced, and any advertising claims will be interpreted on that basis. 

FSA campaign: vegan labelling can put allergy sufferers at risk

In the Venn diagram of individuals with a vegan diet and those that are allergic to products of animal origin, the intersection of products each dietary category considers suitable for consumption can be substantial. This is why the FSA is now warning: vegan labelling is not designed to be a replacement for allergen labelling.

A recent FSA study found that, amongst those who suffer adverse reactions to products of animal origin or those who purchase food products for sufferers, more than 50 per cent of respondents at least sometimes used vegan labelling to decide what to purchase. Moreover, nearly 30 per cent of respondents in these categories were not aware that they should also check the precautionary allergy statements of products marked vegan.

As a result, the FSA is campaigning to raise awareness about the importance of checking vegan-labelled products for precautionary allergy statements (such as the "may contain" lines on many packaged foods). The campaign also emphasises the distinction between "free-from" labelling, which denotes that the food has been prepared in areas completely free from a given allergen, and vegan labelling, which is not required to make the same assurances (in fact, there are no concrete legal requirements governing the use of the term "vegan").

Highlighting the risks of cross-contamination, the campaign has the backing of three allergen charities: Allergy UK, Anaphylaxis UK and the Natasha Allergy Research Foundation. The Vegan Society is also on board with the message, underscoring the importance of clear labelling for those with allergies and vegans alike.

Name change could be in store for dairy alternatives

The Guardian has reported that the Food Standards and Information Focus Group (FSIFG) has produced a draft opinion on the labelling of plant-based dairy substitutes in the UK. The Plant-based Food Alliance UK (PbFA) and other food awareness organisations have raised major concerns with the supposed government guidance.

The draft guidance will reportedly prevent plant-based brands from using wordplay on product labels, such as "cheeze" or "mylk", on the grounds that it confuses consumers. It will also seek to outlaw descriptions like "whole", "yoghurt-style" or "an alternative to milk", which essentially prevents brands from drawing equivalences with the conventional dairy products that they are seeking to invoke and/or replace. According to the FSIFG, “Technological innovation is leading to the construction of products offered as alternatives to conventional foods of animal origin. It is important that products are clearly distinguished, understood and nutritional differences are not confused.”

Perhaps unsurprisingly, environmental and trade groups like the PbFA are strongly opposed. They claim that consumers are not confused and are instead experienced at distinguishing dairy products from dairy alternatives (and vice versa). These groups are concerned that this will heavily restrict plant-based brands from attracting consumers at a time when such  foods are crucial in reaching the UK's net-zero emissions goals. If the FSIFG proposals are adopted, it would put the UK out of step with the EU and US, which both recently rejected similar proposals.

Raw deal? Judge quotes Winnie-the-Pooh in UK honey-labelling ruling

For nearly a century, the Winnie-the-Pooh stories have taught children young and old about the importance of individual characteristics, nurturing friendships and, of course, the delicious qualities of honey. For Judge Neville, sitting in the First-tier Tribunal (General Regulatory Chamber), it was perhaps the first and third of those lessons that informed his judgment in a dispute between Odysea Limited and the London Borough of Waltham Forest.

The case centred around the use of the term "raw" to describe honey marketed and sold by Odysea. The brand considered raw to be an appropriate descriptor to signify that "unlike ordinary honey, ours has not been heated above its natural temperature and has undergone far less processing, so is of better quality". Waltham Forest Trading Standards argued that no honey is, in fact, cooked, meaning that all honey must be regarded as "raw".

After quoting Winne the Pooh in his opening paragraph - "If he treated Pooh to some "raw honey", what would be different about it?" - Judge Neville determined in favour of Odysea, finding that its raw honey was sufficiently different from other honey. The judgment focused on the lack of processing involved, which was distinct from ordinary honeys and rejected arguments that the term "suggests special characteristics that in fact all similar foods possess, or that it is any other way misleading." That being said, Judge Neville declined to rule on a fixed definition of the term "raw", despite both sides putting forward submissions in this regard.

Jack Daniel's Whiskey ad held to be irresponsible

The ASA has found a Jack Daniel's whiskey poster placed on the London Underground in November 2023 to be an irresponsible alcohol advertisement. The ad showed a group of friends sat at a table, two pouring Jack Daniel’s and a mixer into a glass and the others holding glasses of the same drink. Large text stated “Shorter days mean we can skip to the good part” whilst text at the bottom of the ad read “Jack Daniel’s: Make it count. Remember the good parts. Please drink responsibly”.

A complaint was made to the ASA on the grounds that the ad irresponsibility promoted unwise drinking styles and implied that alcohol might take priority in life, and that drinking it could overcome boredom by encouraging drinking earlier in the day.

The ASA agreed with the complainant ruling that the ad breached CAP Code Rule 18.1 (ads must not lead people to adopt unwise drinking styles) and 18.6 (ads must not imply that alcohol might take priority in life or drinking it can overcome boredom). The key features of the ad led the ASA to this conclusion, including: (i) the bottle of Jack Daniel's whiskey being the main focus of the ad; (ii) the irresponsible behaviour being encouraged by implying that people should consume alcohol earlier in the day when daylight hours are shorter; (iii) the fact that the "good parts" of the day referred to parts of the day when alcoholic drinks were being consumed; and (iv) the overarching implication that drinking alcohol could overcome boredom and take priority in life.

Brown-Forman Beverages Europe Ltd t/a Jack Daniel's was reprimanded and warned against future ads depicting unwise drinking styles.