As the traditional Scottish tattie holidays approach, an open letter signed by farmers, politicians and celebrities demonstrates an understandable, and growing, resistance in the agricultural sector to the use of fake farm brand names and Union Jack labels on foreign produce. This practice, often seen in supermarket own-brand labelling, has been coined 'farmwashing' due to its misrepresentational effect on consumers who believe they are buying local produce from local farms.
In this article, we look at farmwashing and misleading labelling from a legal perspective and examine the parallel with the wider-known concept of 'greenwashing', to highlight the risk to businesses of falling foul of regulatory and reputational scrutiny if they adopt such practices.
What is farmwashing?
Activists have used the term 'farmwashing' to denote marketing practices designed to mislead consumers by presenting imported produce as being sourced from local farms. Such practices involve using fictitious farm names or the Union Jack on labelling, with examples including Aldi's invented "Ashfields" brand for their meat produce and "Oaklands" being used by Lidl for their vegetables. These labels often give the produce a characteristic it may not have: local origin.
Those adopting branding and packaging which constitutes 'farmwashing' are targeting consumers who wish to support local businesses. This harms genuine local farms and businesses by diverting much-needed revenue, eroding consumer trust and ultimately undermining the UK agricultural industry, which has been seeking support during difficult times.
From a different perspective, it is also important to recognise that 'farmwashing' and related practices present legal and reputational risks to businesses who adopt such practices.
The similarities between this form of deceptive marketing and another, more well-known, form in 'greenwashing' are clear. 'Greenwashing' involves businesses deceiving consumers by providing misleadingly positive information about their environmental credentials. Both practices act to mislead the consumer and take advantage of preferences towards local or eco-friendly retail behaviour.
Farmwashing from a legal perspective
From a legal perspective, 'farmwashing' is an example of using potentially misleading trade marks. Trade marks act to distinguish a product and reassure the consumer about its source, i.e. its origin and its quality; for example, you buy a Mars bar because you know what it is, who makes it, and how it will taste.
The UK Intellectual Property Office will refuse to register a trade mark if it is considered misleading, and it is judged to be so if it conveys a clear characteristic about the good or service which is deceitful or poses a sufficiently serious risk of deceit. The use of fake farm names may deceive consumers as to the geographical origin of a product, and therefore potentially misleads as to its source and quality.
While 'farmwashing' retailers may not be looking to register their own-brand fake farm names, this issue does highlight the importance of honesty and integrity for businesses looking to register their intellectual property. Regulators will demand that consumers can trust the product based on its branding.
In terms of regulation, various retained EU regulations and the Food Information (Scotland) Regulations 2014 state that typical fresh agricultural produce (meat, fruit and vegetables) must display their country of origin on packaging. This is important to provide transparency to consumers.
Some retailers may seek to mislead consumers by 'farmwashing' but they generally state the country of origin of the product. Packaging will contain (normally in small print) information about the country of origin and therefore arguably do not breach the regulations. In addition, the use of fictitious farm names may not be held to be an "unfair commercial practice" under the Consumer Protection from Unfair Trading Regulations 2008.
Reform: Strengthening Protections Against Farmwashing
So, can 'farmwashing' be stopped? It appears that current food and drink labelling regulations do not address the issue head-on, as they only require that the country of origin is included on fresh produce packaging. Reform may be in the offing to strengthen protections against 'farmwashing'.
A potential move could be to require origin information on labels to be larger or provide more detail as to source, with regulations also determining that packaging, labelling, branding and promotional materials must not feature elements that may deceive the consumer as to the origin of the product. Clearer industry guidelines could be developed to target and stop 'farmwashing'.
In that respect, the response to 'greenwashing' may act as a template to combat deceptive practices in agriculture. Following intense media scrutiny, regulators across the economy brought in targeted measures to combat greenwashing. This included the FCA's Sustainability Disclosure Requirements and the CMA's Green Claims Code.
This top-down response acted in combination with a consumer-led movement that 'named and shamed' greenwashing companies, as evidenced by Volkswagen's reputational turmoil following the revelation of their deceptive emissions tests. Ultimately, this multi-party response levelled the playing field and promoted integrity through clearer rules, to the benefit of consumers and honest businesses.
Lessons for businesses
There are lessons to be learned from the 'greenwashing' saga (which is still ongoing) for businesses who are misleading consumers, both reputational and regulatory.
When building their brand, businesses should:
- ensure all marketing, branding, packaging and labelling materials for products are transparent and do not mislead consumers (or risk being unable to register a trade mark);
- adopt an authentic culture and adhere to ESG responsibilities to grow consumer trust and brand loyalty;
- review supply chains on a regular basis to ensure that products genuinely reflect their origin; and
- be flexible and respond early to potential regulatory reforms.
Conclusion
Local farmers want to utilise the goodwill they have from the British public. With the growing publicity around this issue, consumers and regulators may act to stop 'farmwashing' businesses and retailers. As the 'greenwashing' debacle demonstrates, businesses must adopt authentic and transparent practices to stay ahead of any negative reputationally damaging action. Great brands can be humbled and damaged or even destroyed by reputational attack. Does anyone remember Sunny Delight?
How can we help?
MFMac's Commercial team can provide advice on legal queries relating to intellectual property, industry regulation and consumer protection. Should you have any queries, please do not hesitate to get in touch with Euan Duncan, Partner in the Commercial team at MFMac.
This article was written by Josh Chambers, Trainee Solicitor in our IPTC team.
