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Your food labelling and advertising: Keeping it “legal, decent, honest and truthful”

There has been a small flurry of food related advertising and labelling issues that have arisen over the last few months. The topics covered are food labelling, the use of geographical indications and copycat products. After looking at these, we go on to discuss the latest developments which attempt to crack down on greenwashing.

Oatly AB v Dairy UK Ltd

In November 2019, Oatly filed a trade mark application for “POST MILK GENERATION”. The UK Intellectual Property Office accepted the application but then Dairy UK (the trade association for dairy supply in the UK) objected to its registration.

Dairy UK argued that the term “POST MILK GENERATION” for a non-dairy product was likely to deceive the public into thinking it was a dairy product when it was not. Dairy UK argued that the term “Milk” was inextricably linked to the dairy industry.

In January 2023, the UKIPO agreed with Dairy UK’s arguments and rejected the trade mark for goods registered in the classes for various oat-based food and drink products.

Oatly appealed to the High Court and the court found for Oatly.

It held that the trade mark, “POST MILK GENERATION” was distinctive and not descriptive of the goods for which it was registered. Dairy UK argued that the EU Regulation which establishes common markets for the advertising and sale of agricultural products prohibits the use of the term “milk” on goods unless:

  • they come from milking an animal
  • are exclusively from animal milk; or
  • animal milk is “an essential part” in either quantity or characterisation.

Oatly argued that the Regulation applied to:

  • the description of a product rather
  • than the use of a trade mark.

In other words, the Regulation only applied when describing the nature of the goods and not when “milk” was used as part of an indicator of the commercial origin of the goods. The Court found that Oatly’s products were neither identified nor marketed as milk despite the inclusion of the word, milk, in the trade mark.

Comment: The relationship between food labelling regulations and intellectual property rights is complex and need to be considered on a case by case basis. Therefore, this case is not a green light for the use of “milk” generally on plant based products. In fact, it is quite the opposite. Oatly’s trade mark “POST MILK GENERATION” was allowed precisely because it was “not descriptive” so as to fall foul of the EU Regulation. If it had been descriptive, it could not function as a trade mark.

The Food Standards Agency – vegan labelling and allergies

The Food Standards Agency has launched a campaign highlighting the risks to people with animal based allergies of food labelled as vegan. Research conducted by the FSA has shown that consumers are extrapolating food labels too far finding that consumers with an animal-based allergy were too often confident that products labelled as ‘vegan’ were safe to eat.

The FSA says this confidence is incorrect and is putting people at risk.

Therefore, people who have allergies to milk, eggs, fish and crustaceans or molluscs, still need to check the precautionary allergen statement on products labelled ‘vegan’ in order to decide if it is safe to eat. Common mistakes include taking “vegan” labelling to indicate:

  • a food is safe to eat for those with animal allergies
  • a food will be tolerated by those with food hypersensitivity, and
  • there was no need to check for a precautionary allergen label.

“Free-from”

The campaign also explains what the ‘free-from’ label means.

To use a free-from label, food businesses must follow strict processes to eliminate risks of cross-contamination with whatever you want to claim you are “free-from”.

As counter-intuitive as it may seem, vegan food can still be prepared in areas alongside products such as eggs, milk, fish, crustaceans or molluscs, whereas free-from foods cannot.

Protected Geographical Indications

Protected Geographical Indications (PGIs) are designations granted to products because of specific characteristics, reputation, authenticity, and/or origin. PGIs provide legal protection for the names of products with a specific geographical connection or that are made using traditional methods.

Over 3500 products are covered, such as Champagne, Melton Mowbray Pork Pies and Parma Ham, meaning that in order to describe your product as such, it must:

  • be produced within the prescribed geographic region, and
  • conform to the relevant standards

Exporters need to be aware of an update to the EU PGI regime which extends PGIs to cover “any misuse, imitation or evocation” of a PGI even if the true origin of the products is indicated. The New Regulation is very wide and seeks to prevent the use of descriptors stating a product is in the ‘style’ of, ‘type’, ‘method’, ‘as produced in’, ‘imitation’, ‘flavour’, ‘like’ or similar” to a PGI.

Thatchers’ Cloudy Lemon Cider loses case against Aldi’s imitation

The Thatchers case involved the discount supermarket, Aldi, producing a look alike of a market leading Cloudy Lemon Cider product. Thatchers is a Somerset-based cider maker, which, in 2020, launched its Cloudy Lemon Cider product in UK supermarkets.

Thatchers’ Lemon Cider is sold in cans decorated with illustrations of lemons, and a UK trade mark was registered by Thatchers in May 2020 for the Thatchers’ Lemon Cider logo. Two years after the launch of Thatchers’ Lemon Cider, ALDI launched a newly branded version of its own lemon cider, which is part of its “Taurus” cider range.

Thatchers started legal action against ALDI in the High Court for trade mark infringement and passing off. The trade mark featured a combination of descriptive words and images of lemons.

Therefore, in its defence ALDI said that:

  • the Thatchers trade mark, packaging and the words “Cloudy Lemon Cider” were not sufficiently distinctive to be considered an “indication of origin”.
  • the lemon designs on a white background used on the Thatchers Lemon Cider can were not distinctive, and
  • the only distinctive element of the Thatchers trade mark indicating origin was the Thatchers brand name.

The decision

The dominant features of the trade mark was found to be the “THATCHERS” brand. ALDI’s “TAURUS” brand and bulls head device on its product served to prevent confusion.

The use of the colour yellow on both cider products and lemon products was ubiquitous, and the use of lemons and lemon leaves on lemon-flavoured beverages including lemon ciders was very common.

For the reasons given when reaching a finding of no likelihood of confusion in the context of trade mark infringement, the judge was satisfied that there was no misrepresentation that ALDI is connected in trade with Thatchers. Accordingly, both the trade mark infringement claim and the passing off claim failed.

Greenwashing

The Competition and Markets Authority is taking a much more interventionist role in an attempt to control greenwashing. The CMA took action against ASOS, Boohoo and Asda in respect of its investigation as to how these three companies labelled their clothes.

The CMA was concerned by:

  • Statements regarding fabrics: such as “eco” or “responsible” without further explanation. and
  • Use of imagery: such as green leaves, logos or icons in a way that suggested a product was more environmentally friendly than it is.

On 27 March 2024, Boohoo, ASOS and George at Asda entered into agreements ending the CMA’s investigation without any admission of liability but with undertakings not to continue or repeat any act which the CMA believes infringes consumer law and which harms the collective interests of consumers. The retailers must ensure all green claims are accurate and not misleading.

While the undertakings are specific to the fast fashion sector, the following six key principles set out in the CMA’s Green Claims Code will be enforced generally with respect to all consumer goods:

  • be truthful and accurate
  • be clear and unambiguous
  • not omit or hide important information
  • compare goods or services in a fair and meaningful way
  • consider the full life-cycle of the product or service
  • be substantiated.

All producers must consider their obligations under consumer protection law when making environmental claims and put in place robust internal processes to ensure that these principles are complied with.

If you would like to discuss any of the issues raised in this article, please contact Iain Connor.