Safeway risks legal row over sales of baby milk

Supermarket chain Safeway could be breaking the law by allowing consumers to buy dried baby milk products with its ABC customer loyalty card.

Regulations introduced last March under the Food Safety Act 1990 prohibit “the promotion of infant formulae to the general public by providing such formulae free or at reduced prices”.

The regulations state that it is illegal to “promote the sale of an infant formula by means of premiums, special sales, loss leaders or tie-in sales, or to undertake any other promotional activity to induce the sale of an infant formula”.

Holders of Safeway’s ABC customer loyalty card can receive discounts on infant formulae when they redeem points gained on it. They can also get discounts for over-the-counter medicines.

The scheme is to be investigated by trading standards officers, responsible for enforcing the legislation, as part of an on-going inquiry into the implementation of the law.

The regulations were originally introduced following intense lobbying by the World Health Organisation (WHO) to ban the promotion of alternatives to breast feeding – which it says is the safest and cheapest way of feeding babies.

Safeway insists it is not breaking either the ban on price promotions for baby milk or the 35-year-old Resale Price Maintenance Agreement that fixes the price of otc medicines.

“We are rewarding customers for their total spend and therefore not promoting any particular product,” says a company statement.

The legislation concentrates on direct price promotion. However, it could also be interpreted to include more indirect promotion.

It will be the responsibility of trading standards officers to decide whether Safeway is breaching the regulations.

The Local Authorities Co-ordinating Body on Food and Trading Standards is drawing up guidelines relating to the legislation.

It will now widen its investigation to include loyalty card schemes, and Safeway’s position.

“Loyalty cards are a relatively new phenomenon,” says Andrew Radford, UK co-ordinator for the Baby Milk Action pressure group. “But the WHO marketing code outlaws both direct and indirect promotions. I would think that this type of scheme could be covered by the tie-in condition.”

Baby Milk Action is also seeking a ban on promoting follow-on milk products for babies over six months, including Cow & Gate’s Step- Up, which are not covered by the new legislation.

Of the big supermarket chains, only Tesco appears to be following the letter of the law regarding baby milk products and otc drugs. It exempts baby milks and medicines from its Clubcard loyalty scheme because of the legal restrictions.

Sainsbury’s claims not to include baby milks and medicines in its Saver Card discount loyalty scheme. But stores at North Cheam, Basildon and Camden say discounts are available for the products.

Following enquires by Marketing Week, Sainsbury’s says it will ensure that all its stores have signs telling shoppers such products are exempt from its loyalty scheme.

The news follows revelations that Asda is to mount

a campaign to smash the Resale Price Maintenance Agreement for otc medicines.

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