Sainsbury’s toxic cat food recall: Do product recall emails constitute ‘direct marketing’?

Sainsbury’s failed to warn cat owners of a toxic cat food product after customers who had opted out of email marketing were excluded from important alerts about the recall. The product recall was announced on June 17 and covers several brands of dry cat food from Applaws and others owned by Pets at Home and Sainsbury’s.

Sainsbury’s recalled the product on 16 June but several customers who bought the product from the supermarket did not receive an email alert until mid-July.

This raises the question: do product recall emails constitute 'direct marketing'?

Becky White, one of our expert data protection solicitors comments:

'This scenario raises an interesting point regarding the definition of ‘direct marketing’ which has specific implications as far as data protection legislation is concerned. Product recall messages can be critical to the health and welfare of people or animals and, in any event, are likely to fall under the description of being ‘service messages’, not direct marketing (which an individual usually needs to ‘consent’ to receiving).'

What is the definition of direct marketing?

Direct marketing consists of any marketing that relies on direct distribution or communication to individual consumers, rather than through a third party. Emails, letters, social media and texting campaigns are usually used to deliver direct marketing.

Becky comments:

'The ICO states that routine customer 'service messages' do not count as direct marketing, examples of service messages include information about service interruptions, delivery arrangements, product safety, changes to terms and conditions, tariffs or general branding, logos or straplines.'

'If the message included any promotional material aimed at getting customers to buy extra products or services or to renew contracts, this might fall under direct marketing, and Sainsburys would have needed to ensure all recipients of the message had consented to receive such direct marketing, however, a genuine product recall situation such as this is not likely to meet this criteria.'

What can we learn from Sainsbury's?

It is well established in law that the health and safety of any person should not be compromised by the impact of data protection legislation. Animal lovers will no doubt feel that the same should apply to cats.

GDPR compliance in any company will only be truly effective if there is a culture of compliance and respect for personal data. A GDPR compliance strategy that encompasses staff training and ongoing support will ensure that every member of staff understands the importance of GDPR compliance and the consequences for the business of a data breach or any other form of GDPR non-compliance. To find out more, read our article GDPR and consent: email marketing compliance.

At Harper James Solicitors, we work with businesses of all sizes in a wide range of sectors so we’re able to quickly understand the precise GDPR compliance requirements that apply to you. If you need advice on email and electronic marketing and compliance with data protection laws, get in touch for an initial no-obligation consultation.