30 April 2020

ASA ruling

On 15 April 2020 the Advertising Standards Authority (ASA) upheld complaints received from consumers in relation to Burger King’s advertising of its first ‘100 percent’ plant-based burger and banned them from using advertising which suggests that its new ‘Rebel Whopper’ burger is vegetarian and vegan-friendly.

The soy-based product was released by Burger King in January 2020 and was promoted using internet adverts on the social media platforms Twitter and Facebook. The adverts described the burger as 'our first plant burger', '100 percent whopper, no beef' and 'powered by the vegetarian butcher'.

Whilst the consumer could request a method of preparation that would not use or involve cross-contamination with meat products, as standard the Rebel Whopper is cooked on the same grill as meat burgers and contains egg-based mayonnaise.

Whilst the adverts did contain a note in small lettering at the bottom stating that the product is 'cooked alongside meat products' the ASA held that the print was 'not sufficiently prominent to override the overall impression that the burger was suitable for vegetarians and vegans'. The ASA held that since the burger was released in ‘Veganuary’, used a green colour background and used the ‘vegetarian butcher’ logo on the social media posts, this contributed further to the impression that it was suitable for vegetarians and vegans.

Section 3 of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) provides that advertising must not materially mislead the consumer or be likely to do so. The ASA held that Burger King’s advert breached rules 3.1 and 3.3 of the CAP Code in that it misled consumers by implying that the product was suitable for vegetarians and vegans when it was not.  

The ASA’s ruling highlights one of a number of issues relating to the marketing and labelling of plant-based food products, sales of which are on the rise both within the UK and worldwide.

EU rules for marketing plant-based foods

Existing EU law (EU Regulation 1308/2013) seeks to protect the EU dairy sector and to prevent consumer confusion by reserving certain designations and sales descriptions exclusively for the labelling, marketing and advertising of products which are derived from animal milk. Subject to certain approved exceptions for products which are well known to be of non-dairy origin (eg. coconut milk and peanut butter), this includes words such as 'milk', 'cream', 'butter', 'cheese' and 'yogurt'.

The European Court of Justice has taken a hardline approach when interpreting the EU legislation. In the 2017 ‘TofuTown’ case (Verband Sozialer Wettbewerb eV v TofuTown.com GmbH (Case C‑422/16)) it ruled that the designations set out in Regulation 1308/2013 cannot be used on purely plant-based products, even where additional descriptive or clarifying phraseology is used to indicate the plant-based origins of the product. Consequently, only products containing animal milk may use the dairy designations and businesses are not permitted to market dairy-free products with those protected designations, even where the plant name is also included (eg. ‘plant cheese’, ‘soya milk’ and ‘tofu butter’ are not permitted). 

Like the dairy industry, the meat industry is keen to protect its position in the market and in 2019 the European Parliament Agricultural Committee approved the proposal to ban use of terms such as ‘burger’, ‘sausage’ or ‘steak’ to describe products that do not contain meat and to reserve such designations exclusively for meat containing products. A number of alternative names for the meat-free products have been suggested, including ‘veggie discs’ and ‘veggies tubes’.

The proposed amendment is yet to be ratified by the current European Parliament but if it is backed by the majority of MEP’s this could result in a significant change to the way that plant-based alternatives to meat can legally be labelled and marketed across the EU.

What will the post-Brexit position be?

The UK is currently one of the largest markets in Europe for plant-based foods and the recent decision in the Burger King case makes it clear that the ASA requires strict compliance with the CAP Code to ensure that vegetarian and vegan consumers are sufficiently protected and are not misled.  

EU law will continue to apply in the UK during the Brexit transition period (currently until 31 December 2020) and the Regulations limiting dairy designations will remain in place post-transition. But what will the EU’s proposal regarding the marketing of meat-free, plant-based products mean for the UK post-Brexit? Will the UK choose to follow suit and adopt similar legislation when it leaves the EU in December 2020? One, uniform set of rules across Europe would certainly make trade with the EU easier.

The plant-based market is booming in Europe and it is anticipated that it will continue to grow in the coming years. While no meat related bans are in place at present, there already appears to be a shift in meat-free marketing with certain meat-free brands already seeking to avoid the use of meat terminology when labelling and marketing their products, to avoid the risk of future complaints.

In the UK, the law and the CAP Code already require plant-based labelling and marketing to be clear and unambiguous to the consumer and, with that in mind, the UK may, post-Brexit, choose to adopt the EU’s proposals in relation to the prohibition of the use of meat terminology for the marketing of non-meat products. Many of those working to promote vegan and vegetarian eating would argue that this is necessary to ensure that the UK food industry is transparent and that those at the heart of the industry, the consumers, are adequately protected.

Key contact

Helen Scott-Lawler

Helen Scott-Lawler Partner

  • Head of Food and Drink
  • Commercial
  • Intellectual Property and Media

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