TC09095 - [2024] UKFTT 00181 (TC)

The market and the marketing [116] – [121]

“116.

The target market for the Organix Bars is the parents of toddlers and young children; the bars are labelled as being for ‘12 months plus’. They are normally located in the baby/infant section of stores, and when working with large retailers, Organix only deals with buyers who represent the ‘baby food’ section.

117.

In Morrison’s, Organix Bars have only ever been positioned in the baby food part of the stores. Ms Marston described Organix as ‘the number one player in the “baby dry food snacking area”’ and her unchallenged evidence was that customers ‘would expect to find them with toddler foods and snacks’. As noted at §22(2), although Ms Marston attached to her witness statement pictures of Morrison’s baby food aisles, the resolution of those images meant that it was not possible to see the names of adjacent and nearby products. I therefore find as a fact that the Organix Bars were held out for sale with other snacks for babies, and make no finding as to whether they were next to, or close to, any form of traditional confectionery which was similarly aimed at very young children.

118.

Morrison’s also sell Organix bars online, where they are located by the following route: Baby and Toddler – Baby and Toddler Meals and Drinks – Toddler (12-36 months) – Snacks.

119.

Organix’s website states that their bars ‘won the title of Best Toddler Snack at the Loved By Parents Award’. It also describes the Banana bar as ‘deliciously yummy’ and includes the following text:

“Soft, scrummy and deliciously fruity, our organic Banana Soft Oaty Bars are packed full of real fruit pieces, juicy raisins and wholegrain oats for toddlers on the go. These banana oat bars for babies make the perfect snack for toddlers and kids off on life’s little adventures.”

120.

The description of the Carrot Cake bar is similar:

“Packed full of juicy raisins and wholegrain oats with flavour from real carrots for toddlers on the go. These carrot oat bars for babies make the perfect snack for toddlers, kids lunchboxes and life’s little adventures.”

121.

Morrison’s website describes both bars as ‘ideal toddler snack bars’. In correspondence with HMRC on 17 April 2019, Mr Marshall said that ‘the Organix Bars are held out for sale [by Morrison’s] as healthy snacks’. Mr Howard agreed in cross-examination that the Organix Bars were not marketed as cakes.”