The Campaign for Real Ale ("CAMRA") has asked for an investigation by the National Trading Standards and Trading Standards Scotland into Carlsberg Marston's "Fresh Ale" products, which are served using a cask handpump, notwithstanding the fact that the relevant ale products are kegged instead of cask conditioned. Handpumps are generally associated with cask ales, which are produced from natural ingredients and not artificially carbonated in the way that keg beer is. CAMRA believes that this practice will confuse consumers into the mistaken understanding that the 'Fresh Ale' described by Carlberg as 'brewery conditioned beer' is a type of cask ale.
Cask V Keg - What's the difference?
Cask ale is a living beer that’s unpasteurised and unfiltered and therefore has a shorter shelf life. The beer is also naturally conditioned and undergoes a secondary stage of fermentation inside the cask. Beer connoisseurs point to this as an essential process that allows the character and flavour to develop with age.
By contrast, a keg beer is filtered and carbonated. Keg beers are colder than cask ales and crucially have a longer shelf life due to carbonation. Keg beer is not a 'live' beer because once it leaves the brewery it contains no viable yeast and does not undergo further conditioning, unlike cask-conditioned beers that continue to develop flavour and carbonation in the pub cellar.
About CAMRA
CAMRA is an independent voluntary consumer organisation which promotes real ale around the UK. CAMRA represents over 150,000 beer drinkers and pub goers across the UK. Alongside the call for an investigation, CAMRA has launched their "Handpump Hijack" campaign to raise awareness of misleading beer dispensing practises and to promote the use of handpumps for cask beer only.
Why is this important?
The category of beers produced by Carlsberg Marston fall into a broader category branded as 'Fresh Ales'. These are beers that are said to straddle the lager, cask ale and craft beer categories. In terms of creation, fresh ales are initially brewed as cask ales, but instead of being filled into casks they are gently carbonated before being put into kegs. For CAMRA, this practice amounts to misleading advertising because beer drinkers may be confused into making purchasing decisions that they otherwise would not have made. Fundamentally, CAMRA considers that the labelling of brewery conditioned beer as 'Fresh Ale' gives a consumer impression that a particular status is attributable to a product that does not meet the technical criterion for that classification i.e. the impression that a brewery conditioned beer is the same as a cask ale.
The brewing of cask ale is regarded as an artisanal process. Allowing the beer to develop in the cask is said to give a unique and developing flavour to that beer. Attributing cask ale status to a product that undergoes an entirely separate production process potentially undermines the chemical 'alchemy' of cask beer production. According to CAMRA, this practice amounts to misleading advertising practices and is challengeable under consumer protection laws. The National Director and Chair of CAMRA’s Real Ale, Cider and Perry Campaigns Committee has said that: “CAMRA believes that these practises come under the scope of the Consumer Protection from Unfair Trading Regulations 2008, as the average consumer may choose to buy the product on the basis that they believe it to be cask conditioned beer, which in this case it is not".
Carlsberg response
In response, Carlsberg has welcomed an open dialogue with CAMRA to try and improve industry innovation and deliver a more sustainable future for the cask ale category in the UK. They say that their Fresh Ale products have been developed to offer a wide range of great tasting ales to pubs who can't offer cask ale at all, or don't have sufficient space to have more than one or two cask options on the bar.
In defence of the claims made by CAMRA, Carlsberg have argued that they are clearly signposting the distinction between brewery-conditioned ale and cask-conditioned ale at the point of purchase, with a pump clip attachment, labelling and QR codes which consumers can scan to understand more about the Fresh Ale products.
The legal framework
In the UK, consumer protection regulations prohibit misleading actions and omissions, including those which cause or are likely to cause the average consumer to take a transactional decision which they would not have otherwise taken. The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) serve as a legal framework to protect consumers from unfair, misleading, or aggressive advertising practices.
The Advertising Standards Authority (ASA) may take the CPRs into account when it rules on complaints about marketing communications that are alleged to be misleading and uses the CPRs as a reference when handling advertising complaints. Crucially, the ASA assesses the 'overall impression' created by marketing communications as well as specific claims. This assessment hinges on the likely effect on consumers, not the marketer's intentions. The ASA takes a robust enforcement approach across all sectors that are held to be presenting misleading consumer information in adverts. Most recently, we have seen the ASA upholding a complaint against a brewer in relation to misleading environmental claims.
Comment and summary
It is notable that in this instance CAMRA has raised the complaint directly with Trading Standards. Often, we see complaints of this nature passing through the ASA investigation and enforcement process. The ASA holds multiple enforcement tools at its disposal if an upheld complaint is not satisfactorily addressed, including referring the matter onto Trading Standards if it believes its sanctions have not led the advertiser to cease the infringing advert.
Carlsberg's response that it has provided adequate labelling and information to consumers about the provenance of its Fresh Ale products has not alleviated CAMRA's concerns. CAMRA have raised doubts about the likelihood of consumers understanding terms such as "brewery conditioned", noticing the small print, or scanning QR codes whilst waiting for their pint of beer. They believe that such practises will erode the image and heritage of the iconic beer handpump as a symbol of cask conditioned beer. It remains to be seen what action, if any, will be taken by Trading Standards and whether the ASA may be prompted by a complaint to investigate the practice or whether Trading Standards will directly investigate the complaint.
We have extensive experience assisting drinks businesses in ensuring compliance with regulatory obligations, including under applicable advertising and trading regimes. If you would like to discuss anything raised within this blog, please contact Grant Strachan, Ally Burr or your usual Brodies contact.
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