Tesco promoting Danone Aptamil formula in store

Tesco's response 6 February 2013: Tesco sent an email reply the day after this violation was reported to it but did not respond to the issues that the Baby Feeding Law Group raised regarding the fact that the Infant Formula and Follow-on Formula Regulations (2007) and the associated Guidance Notes which set out how the Regulations should be interpreted very clearly prohibit this promotional practice. In defending the promotion, Tesco has neither apologised for breaking the marketing requirements nor indicated it will remove the promotion. Details below.

The violation:

The Guidance Notes for the Infant Formula and Follow-on Formula Regulations (2007) state:
 
‘Shelf-talkers’ … and other in-store promotional devices for follow-on formula must not be used in the vicinity of infant formula 
 
 
In December 2012 it was reported that in-store promotion was being used inappropriately in Tesco, Gorton. The shelf talker promoting new packaging for Danone's Aptamil formula is placed alongside the range of formulas on the shelves, including infant formula and follow-on formulas.
 
The formula featured on the shelf talker is the third in the range, which is for use for babies over 6 months of age. However, as the packaging is not labelled in accordance with UK regulations, this is not as clear as it should be. The Infant Formula and Follow-on Formula Regulations (2007) (see the 'Law' section) state:
 
19. Infant formula and follow-on formula shall be labelled in such a way that it enables consumers to make a clear distinction between such products so as to avoid any risk of confusion between infant formula and follow on formula.
 
The Guidance Notes that show how to interpret the Regulations state:
 
51. the specific terms ‘infant formula’ and ‘follow-on formula’ should be clearly featured on the packaging, in a font size no smaller than the brand name.
 
The photo shows the actual display of the infant formulas immediately adjacent to follow-on milks. The shade of colour of the label on the shelf talker is virtually identical to the label of the infant formula, which is on the shelves alongside.
 
Thus this report highlights both the breach of the Infant Formula and Follow-on Formula Regulations (2007) concerning the actual presentation and arrangement of the products (paragraph 20) and also their promotion (paragraph 23).
 
Presentation (infant formula and follow-on formula)
 
20.  (3) For the purposes of this regulation “presentation” includes the shape, appearance or packaging of the products concerned, the packaging materials used, the way in which they are arranged and the setting in which they are displayed.   
 
The most pertinent parts of paragraph 23, Restrictions on promotion of infant formula, includes:
 
(1) No person shall at any place where any infant formula is sold by retail—
(a) advertise any infant formula;
(b) make any special display of an infant formula designed to promote sales;
(d) promote the sale of an infant formula by means of premiums, special sales, loss-leaders or tie-in sales; or
(e) undertake any other promotional activity to induce the sale of an infant formula.
 
Promotional materials to draw people to the shelves with infant formula are, therefore, prohibited. The rationale is that mothers who want formula will be able to locate it in the store, just as they can locate other products, but the products should not be promoted to the general public. 
 
The Guidance Notes issued to assist with the interpretation of the Infant Formula and Follow-on Formula Regulations (2007) state:
 
53. … In relation to in-store presentation, companies must ensure that they are clearly differentiated in order to avoid any risk of confusion and that:
 
• ‘shelf-talkers’ (attachments that add a company’s logo or sales message to the edge of a shelf) and other in-store promotional devices for follow-on formula must not be used in the vicinity of infant formula.
 
• Follow-on formula should be located at a different part of the store to infant formula. If this is not possible they should be clearly separated in physical location.
 
To reiterate, shelf-talkers for follow-on milks must NOT be near infant formula; and follow-on formula and other milks should be sold in different areas of the store to infant formula.  
 
The promotional and display ‘tactics’ used by both the infant formula and follow-on formula manufacturers and the store are therefore breach of the Regulations. This report has been listed under Tesco as the promotional materials look like they may be marketing materials produced by it, though they may have been produced by Danone, the manufacturer.
 
Baby Milk Action is reporting these violations of the Regulations to the companies and to Trading Standards. 
 
Tesco's response 6 February 2013: Tesco sent an email reply after being alerted to the above information on 5 February. However, this does not respond to the issues that the Baby Feeding Law Group raised regarding the fact that the Infant Formula and Follow-on Formula Regulations (2007) and the associated Guidance Notes which set out how the Regulations should be interpreted very clearly prohibit this promotional practice. In defending the promotion, Tesco has neither apologised for breaking the marketing requirements nor indicated it will remove the promotion.
 
Tesco's Customer Services Manager's reply was as follows:
 
I’m sorry to learn of your concern with the advertisement on our shelves for Danone Aptamil formula in our stores. I can appreciate how concerning this must be for you.
 
After reviewing this with my Support Team, they advise that the advertisement is under the correct product, a bottle of follow on milk, and not infant first milk. The Government rules that all Baby Formula first milk is banned from any price promotion.
 
You comments about the advert has been passed to our Technical Team and they will review this so we can consider your comments for any future advertisements put in place for follow on milk.
 
Should you have any further queries please do not hesitate to get back in touch with me and quote the reference number above.
 
I hope you’ve found this information helpful and thank you for contacting Tesco.
 
Kind Regards
 
Tesco Customer Service