Sustainability is becoming more and more critical for businesses across all markets, nowhere more so than in Food & Drink. High packaging volumes, increased consumer awareness and concern about ethical sourcing and provenance, and the need for reliable yet affordable labour all provide their own challenges for F&D businesses – but also a great platform to be (and be seen as) more sustainable.
But what really is a sustainable brand and what are the challenges in branding innovative products which are sustainable, ethical and responsible?
What is sustainability?
It’s worth taking a step back and asking first what sustainability really means; these days it’s about much more than just the environment. A good place to start is the United Nations’ 17 Sustainable Development Goals (SDGs). These are “a shared blueprint for peace and prosperity for people and the planet, now and into the future”, the goal being to achieve all of them by 2030.
The 17 SDGs encompass topics including poverty, hunger, health, education, gender equality, clean energy, innovation and infrastructure, sustainable cities, responsible consumption, climate action and peace, justice and strong institutions.
Thanks to demands from governments, the public, and employees, companies are increasingly embracing the SDGs. More and more businesses believe that focusing on sustainability (including the environment, diversity & inclusion and social responsibility) is the right thing to do. But it also makes financial sense; a focus on sustainability is also more likely to appeal to consumers, help recruitment and impress investors. And in a world where fuel prices are rocketing and supply chains are interrupted, it’s becoming increasingly essential.
What about consumers?
To quantify the impact that consumer behaviour is playing in all of this, we need look no further than the latest sustainability survey conducted by Deloitte and YouGov. Unsurprisingly, this confirms that UK consumers are increasingly making conscious decisions based on sustainability, for example:
40% of respondents have chosen brands that have environmentally sustainable practices/values (up 34% on last year)
34% have stopped purchasing certain brands or products because of ethical/sustainability-related concerns about them (up 28% on last year)
37% have chosen brands that have ethical practices/values (up 30% on last year)
And Food & Drink is at the forefront of this. The first two findings above were found to apply in grocery more than in any other sector, while in the case of the third, grocery came second only to clothing/footwear. Furthermore, 7% of consumers (again with grocery topping the scores) have contacted a brand to raise an issue on their sustainability or ethical practices/values. That may sound like a small number, but when you consider the total population of the UK, that’s a lot of issues being raised.
This thirst for information from consumers has also led to increasing numbers of “sustainability rankings” and awards, for example “11 Sustainable Food Brands You Should Know About” (Abel & Cole), the Sustainable Brand Index (which ranks 1,500 brands across 35 industries and eight countries) and the Marie Claire Sustainability Awards which includes F&D amongst others.
It’s clear that consumers, especially young consumers, are increasingly seeking out sustainable brands, showing loyalty to them and rejecting or avoiding those about which they have concerns. In short, whether F&D companies want to or not, they have to be more sustainable to survive. Which in turn presents a huge opportunity for brands which get it right, but likewise a significant risk for those which get it wrong.
A sustainable trade mark strategy?
This seismic shift in branding is already, inevitably, having an impact on how trade marks are chosen and used. Since the fundamental role of a trade mark is to enable consumers to identify the origin of a product with confidence, we are seeing increasing numbers of trade marks being filed which convey sustainable credentials – including word marks, slogans, and non-traditional marks.
The three main challenges we see resulting from this trend are:
More limited choice – Companies want to tell consumers what they stand for, but this often leads to the choice of a name with descriptive qualities or elements which have already been snapped up by someone else. Essentially, it’s harder to come up with a strong yet available brand name in a crowded space and when you’re fishing in a smaller pool.
Challenges of enforcement – If your name is less distinctive, you will necessarily have a narrower scope of protection versus third parties. We saw this last year when Oatly failed to stop rival oat milk brand PureOaty because the respective marks were deemed not sufficiently similar for a finding of confusion or damage.
Risk of greenwashing – The authorities are increasingly cracking down in an attempt to protect consumers. Companies need to think very carefully about the colours, names and imagery they are choosing and if they are positioning themselves as “sustainable”, they must be able to back up their claims (more on this below).
With consumers often prepared to pay a premium for sustainable products that appeal to their own social standards, it will be more important than ever to ensure that trade marks are protected and enforced. If a savvy shopper buys a brand that fails to deliver on its sustainability promise (either because it’s found lacking itself or because it is a counterfeit or a lookalike), that consumer may be lost for good. So choose well, protect carefully and enforce sensibly.
Third party seal of approval?
Reinforcing the emphasis on credibility, we also anticipate a potential growth in the registration and use of certification marks, collective marks and other eco-labels which can be used on products or packaging that meets certain conditions – effectively to give third party “seal of approval”.
Examples include Fairtrade, the Forest Stewardship Council (FSC), PlanetMark, Ethical Accreditation from The Good Shopping Guide, Rainforest Alliance and, what is generally deemed to be the “gold standard” of sustainability certifications and is especially popular in the F&D sector, B Corp.
Even this can sometimes be controversial, however, as we saw in April 2022 when Nespresso was awarded B Corp status, despite ongoing concerns from consumers, fair trade groups and competitors about Nespresso’s sustainable credentials, in particular regarding alleged human rights violations on farms that grow its coffee.
A sustainable “stable”?
Another trend we are seeing is the return of the house mark ie the importance of the company brand and what it stands for. See, for example, the UK home pages of Unilever and Nestle, two massive brand-led FMCG companies whose home pages don’t even list the brands; instead, they are all about what the companies stand for and educating consumers. The aim is clearly to portray a “sustainable stable” ie if the company itself is socially and environmentally conscious and credible, then all of their products must be too.
We see this not just in companies’ websites but also in how they choose to present themselves and what they share on social media. Premier Foods are just one company of many whose LinkedIn account features more posts about mental health, volunteer work and D&I than about its cakes and gravy.
Brands are also increasingly willing and indeed keen to speak out on political issues where previously they might have preferred to keep quiet, considering this wasn’t their job. This growing “politicisation” of brands is well demonstrated by the hugely famous US ice-cream brand Ben & Jerry’s who have long been vocal in speaking out about their values and social issues they care about, including LGBTQ+ rights, climate justice and refugee rights. Perhaps more controversial was Wetherspoons’ launch of 500,000 “Brexit beer mats” in its pubs before the 2016 EU referendum which later led to an accusation it had breached the Companies Act.
Consumers are far more open to brands taking these kinds of stands than in the past, but companies should think carefully about their current (and target) consumers when deciding whether and how to enter the political fray. One wrong move could cause irreparable damage to a reputation and a fatal alienation of consumers. Above all else, the stand needs to be authentic and in keeping with the brand’s existing identity and values.
A sustainable match made in heaven?
We are also seeing more choices of partnership based first and foremost on shared values. Considering Ben & Jerry’s strong social credentials, it was perhaps not surprising to see them teaming up in August 2022 with another “impact company”, chocolate brand Tony’s Chocolonely, whose mission it is to end modern slavery in chocolate. What was more interesting, however, was how the advertising surrounding the tie-up focused so much more on the companies’ shared values than on the actual new products (which were limited edition Ben & Jerry’s chocolate bars and Tony’s Chocolonely’s ice cream). Is that what they thought their consumers wanted to see, or was it driven by their own vision, or perhaps a bit of both?
We expect to see more of these kinds of collaborations, sometimes with two equally sustainable brands, but sometimes with a “more sustainable” brand working with another less experienced brand, to lend both expertise and credibility to the offering.
As ever, it’s worth remembering the challenges such partnerships can bring from a branding perspective, including a new name to clear and protect, the need to file top up trade mark applications for new products, and potential disputes around ownership. It’s always worth discussing such issues and reaching an agreement early on in negotiations.
A claim too far?
Clearly, then, there is a huge demand for sustainable brands in the F&D sector and, accordingly, a huge opportunity, but it’s crucial the claims are authentic and genuine. The risks associated with getting it wrong can be broadly classified in to 3 key areas:
Consumers – Being caught greenwashing is often worse in the eyes of consumers than not trying to be sustainable in the first place. When consumers start to smell a rat, they start to doubt the credibility and authenticity of a brand. Thanks to the power of social media, stories can break and spread incredibly quickly and cause untold damage in a matter of hours.
Groups of individuals – Brought together by shared interest and aims on social media, we are increasingly seeing the banding together of consumers, resulting in powerful campaigns, brand boycotts and even class actions brought before the courts to challenge brands on their apparent environmental credentials.
Authorities – More and more keen to protect consumers from greenwashing claims, brands have two main authorities to keep on side in the UK. First, the Advertising Standards Authority (ASA), the UK’s independent regulator of advertising, who have form in banning TV advertisements if they think the claims made are unsubstantiated and unclear. Second, the Competition and Markets Authority (CMA) who work to promote competition in the UK (working closely with ASA). The CMA have issued specific guidance on how to avoid greenwashing, including the “Green Claims Code Guidance”, warning they will look at advertisements as a whole (including names, colours, packaging, imagery, logos, slogans) to see how consumers are likely to perceive them. They’re also not scared to launch their own investigations in to both specific companies and sectors as a whole.
Businesses can’t be too careful if they are making “green” claims, to avoid both reputational and financial damage should they be caught out.
The focus on sustainability and the increasing drive from consumers has had a massive impact on the Food & Drink sector in recent years. It remains to be seen whether this will be slowed by the current significant economic challenges faced by vast numbers of consumers.
In the longer term, however, the trend looks set only to continue, thanks to the limited supplies of the planet, and brands need to plan ahead if they are to survive.
Steps companies should take now include :
Liaising with branding and marketing colleagues to identify opportunities and threats
Making sure that any sustainability claims stand up to scrutiny
Monitoring what competitors are doing
Working with trade mark attorneys to make sure branding is on point and well protected
Here to help
For more information about securing protection for your brand, or if you would like any further advice, please contact Rowena Tolley or your usual Kilburn & Strode trade mark advisor.