Given your interest in Food & Drink law, you may find some of our other updates particularly useful. Employment, for example, has been selected by many of our clients who have signed up to Food & Drink. To register for additional bulletins, guides and seminars, visit sign up.
Please feel free to forward on this bulletin to friends and colleagues who may find it of interest and wish to subscribe themselves.
Food Labelling Updates - Red And Green Lights
Changes have been announced by the UK government as to which departments will have responsibility for food labelling policy. Three departments will now work together. The Food Standards Agency (FSA) will retain responsibility for food safety aspects of labelling. The Department for Environment, Food and Rural Affairs (DEFRA) will retain its current responsibilities including marketing and eco labelling and will now also be responsible where labelling does not relate to food safety or nutrition. Those responsibilities relating to nutrition labelling will move to the Department of Health.
In more food labelling news; the European Parliament has recently issued new guidance. Out of the two chiefly proposed systems for front of pack labelling; MEPs have favoured the Guideline Daily Amounts (GDA) scheme rather than the rival "traffic light" labelling scheme.
The GDA system displays calories and nutrients of foods in the context of daily consumption amounts. The alternative is the FSA endorsed "traffic-light" system which uses red, amber and green symbols in the context of the sugar, fat, salt and protein content of foods. Green indicators obviously mean more healthy than red. This is widely considered the most user friendly approach but has suffered criticism for being overly simplistic.
The winning scheme is still yet to be decided upon but this is a strong indicator of what the likely victor will be.
Scottish Whisky Advertising - Nae Scot In Scotch
In a recent decision the Advertising Standards Agency has banned a company from using a "misleading" advert to promote its not so Scottish "whisky". The company is called Scottish Spirits but is based in Panama. The Scottish Whisky Regulations prevent promotion of a drink that might confuse the public into thinking a drink was Scotch whisky when it isn't.
The advert in question used a coat of arms which was similar in nature to those that Scottish Scotch whisky companies often utilise in their promotional activities. Notably the company in question did not claim the whisky was Scotch, but it was held the characteristics of the advert and images used were enough to constitute an infringement as the public would likely be confused if not actively misled into thinking the product was actually Scotch whisky.
Minimum Price Of Alcohol
Statistics published recently reaffirm that Scotland continues to drink more than every other part of the UK. The new attempt to control the country's consumption is the SNP's Alcohol Bill which contains a minimum pricing plan as its flagship proposal. In September this minimum price was given the figure of 45p per unit of alcohol.
Health Secretary Nicola Sturgeon had spoken positively of the associated benefits in health and social issues. Figures of 4,200 fewer hospital annual admissions and an £83 million reduction in health care costs over the 10 year period were quoted. Despite this in early November the minimum price proposal was unanimously rejected by the Scottish Parliament. The Alcohol Bill was still passed and does include measures restricting advertising and promotional offers, the imposition of a "social responsibility" tax on licenced premises and an age verification requirement of identifying those under 25.
Coca Cola Vitamin Water - Is It The Real Thing?
A US federal judge recently ruled that a case where Coca-Cola is being sued in the US over claims that their vitaminwater products make unwarranted health claims was to be allowed to go forth. The lawsuit brought by a non-profit public interest group, Center for Science in the Public Interest claims that vitaminwater labels and advertising are full of "deceptive and unsubstantiated claims".
Coca-Cola has defended these allegations by asserting that, "no consumer could reasonably be misled into thinking vitaminwater was a healthy beverage". Interestingly, a can of coca cola contains 35g of sugar, and the vitaminwater 33g. Coca-Cola had argued that simply listing the sugar among the ingredients on its label was a sufficient disclosure. However, the flavours of the product including "defense" and "energy" have "the potential to reinforce a consumer's mistaken belief that the product is comprised of only vitamins and water," said Federal Judge John Gleeson (U.S. District for the Eastern District of New York).
Duty Fraud Raids - HMRC Come A Knocking
The HMRC in their efforts to eradicate alcohol duty fraud have been busy since the coalition government came to power. Acting on its revised alcohol strategy the government has instructed customs officers to conduct searches and unannounced inspections on alcohol wholesaler depots. The checks were to ensure that all stock is accounted for and that the associated paper work is all in order.
Wholesalers could be fined for the duty on any stock that has no invoice. The price of Alcohol duty fraud is in the region of £1bn a year. Under the Government's initiative the entire supply chain is to be targeted.
Chocolate Bunnies - Bounce On For Another Easter
The ongoing battle, now in its eighth year in the German courts between chocolate maker Lindt and their competitor Riegelein is evocative of a scene from Richard Adam's novel Watership Down with Lindt's chocolate bunny refusing to give up the fight.
Lindt is seeking to use its Community trade mark relating to the gold-foil wrapped chocolate bunny in order to prevent competitors selling similar products. Both Lindt and Riegelein now face another round in the Oberlandesgericht (OLG) Frankfurt after the Bundesgerichtshof (BLG) overturned a decision by the OLG which did not find any likelihood of confusion between the chocolate bunnies.
The OLG had held that there were sufficient differences in the colour, the presence of an external ribbon and the facial expressions of the bunnies in question. The BLG however stated that this rationale was insufficiently explained following evidence from a survey which suggested the public at large associated a gold bunny shape devoid of such characteristics with Lindt.
The battle between the bunnies continues.
Vodkat Update - Both Sides Appeal For One More Drink
As mentioned in our previous quarterly, the High Court had granted qualified injunction following the decision that Intercontential Brands' (ICB) product Vodkat was unlawfully passing itself off as Vodka. Diageo had brought the case on the basis that the product was not real Vodka but was using the Vodka name and image to promote itself to consumers.
ICB appealed, arguing that the decision was not correct as the law on passing off referred to was limited to products which had a status, meaning that they were perceived by the relevant public as being of superior quality. They argued that Vodka was not as such a premium product. Diageo appealed on the type of injunction granted.
The court of appeal agreed it was not a premium product, but said the law was not restricted to such products that are perceived by the public as having higher reputation. In addition the court upheld the appropriateness of the injunction granted.
Licensing Rules Worry Convenience Stores
The Home Office Consultation "Rebalancing the Licensing Act" has worried the Association of Convenience Stores. They believe proposed "ineffective" changes to licensing policy could cost convenience retailers sums in the region of £11m. In its response the ACS warned of the potential for "disaster" to local shops.
The consultation is seeking views on 26 changes to licensing policy including the introduction of penalties for underage sales offences, new fee raising powers and blanket restrictions on opening hours. Changes would require retailers to demonstrate the impact of their licence. The ACS believes that "cost based discrimination which favours larger companies" is the foreseeable implication.
Scottish Exports - Russia Wants More Salmon
Scottish exports on food and drink have reached an all time high of £4.06 billion. The stats soared by 6% in 2009; importantly food products as an independent category displayed a 20% increase over the year to £934 million.
While the largest proportion of Scottish exports came from export whisky sales, food was flying and seafood exports were in first place. An increase of 20% to £555 million was recorded. Europe is still the main destination for products with France the top export market. A large number of other markets are growing in demand including Russia and Germany. This is great news for the Scottish food and drink industry.
And Finally... Bearded Image Appears In Yoghurt!
A 77 year old man was surprised when he heard from a Swedish friend that his image and most noticeably his "interesting beard" was being used in a yoghurt advert. His face was used by Lindahls to promote their Turkish style yoghurt in Sweden. Mr Minas Karatzoglis (the bearded man) is actually Greek and had no idea of the campaign never mind not having provided any consent for use of his image with the product.
Lindahls, the offending company reportedly paid Mr Karatzoglis two million kronor (around £185,000). Mr Karatzoglis initially sued the dairy company for a higher sum and claimed because of his Greek origin the use of his photograph on the yoghurt was clearly misleading. Apparently his beard draws a lot of attention and often pictures are taken of him.
For further information, please contact:
0141 303 2331
020 7002 8531
01224 356 164
IP & Technology
0131 228 7102
0141 303 2396
This briefing is written as a general guide only. It is not intended to contain definitive legal advice which should be sought as appropriate in relation to any particular matter.