Keep a close eye on advertising

Although we go on about copyright in music a great deal in the pub trade, there are other forms of copyright that can cause problems. It was interesting to read last week about the Humberside bar whose burger infringed Burger King's trademark because it was called a "Whopper"!

These David and Goliath stories make great newspaper material, but they do point to an important legal principle — when you advertise do your homework first.

It is great to have a brainstorming session with your staff on the promotional front, and to get very enthusiastic when someone comes up with a new marketing idea. But what you must check on, apart from the potential clash of names with someone else, is whether the offer can be met in full, or if it might end up with a complaint to trading standards.

Advertising means that not only the public will get to read your flyer, your website entry or your newspaper story, but the local council officials will as well.

A colleague of mine who works for a local authority tells me that he regularly reads the local newspaper to check the ads and the editorial, and follows up on things over which he has some doubts.

Another key area for potential problems is the keen A-board writer. Please remember to check what your staff are placing by the roadside, which you are then asked to honour over the bar. Of course, you can claim a mistake, and withdraw the "offer" because the contract is not technically made, but that is not good for customer relations and, in any

case, misleading advertising is now against the law, so you may get an official visit anyway.

It is a very good idea to have a Cassandra-style person at the planning meeting to try and find flaws in the offer. This may seem negative, but it is often a reality check and can prevent you from going over the top when a little more thought might create something that is both productive and legal.

I am sure the Humberside bar made much of its misfortune in terms of the fresh advertising that it has gained locally.

Whether it sells more burgers under the new name may not yet be clear, but it proves the point that even the smallest outlet has to watch out for one of the big-name operators and its eagle-eyed lawyers.

Q & A​

Clubs and hygiene rules​

Q.​ One of the members of our pubwatch group is the steward of a club and he said that the club was exempt from food hygiene legislation because they do not technically "sell" food and drink and would not be inspected as a result. He said it was like a member's home. Is this true?

A.​ I think it is misguided of this club to assume that they are exempt from a number of laws that cover health and safety.

For example, in the situation you describe, the Food Safety Act 1990 and the Regulations made under it apply to the activities of a club, even though food may not be technically sold there.

The definitions in the Act make clear that the words "business" and "sale" can be applied to members' clubs and, in the case of a local problem, public health inspectors are fully empowered to inspect the club premises and take samples and even prosecute if they find unsanitary conditions.

This means that good hygiene practice should be followed with regard to using a clean receptacle and not exposing such receptacles to the risk of contamination, and also in keeping food preparation areas in good condition. Members of clubs are not exempt, even if they think they are.

Employing own staff​

Q.​ I have a contract with the freehold owner of this pub under a management agreement that imposes on me an obligation to employ and pay part-time barstaff. Someone has now said that I need separate employers' liability insurance, even though the owner has this in a package with the buildings insurance. Can you advise me?

A.​ I do not know the full facts of this arrangement, but, in general, those who employ staff of any kind do require employer's liability insurance.

In this instance you are not employing staff on behalf of the owner as such, but on your own behalf as part of a separate management agreement, so it may be that the insurance cover currently in place is not extensive enough.

However, if you have any doubt about your coverage, the easiest step is to contact the owner's insurers and explain the situation. A leading licensed trade insurer has told me that it would probably be comparatively straightforward to add in the details of your responsibility for insurance purposes without the necessity for taking out a new contract. There is no requirement that you should go to a completely different insurer.

Discount for team​

Q.​ Our local pub football team are having their end of season meeting and awards in the pub, as they usually do, and I give them a discount on various things, including the room and food etc. It is separate from the bar. Someone now says that discounts for teams are not allowed. Is this true?

A.​ This could not possibly be classified as an irresponsible drinks promotion, even though it involves a sporting team. You do not say whether you let them have their beer at a discount, but even if you did for this particular occasion, in my view it would be perfectly in order, as it would be a goodwill gesture to your own team and not part of a deliberate promotion to encourage additional sales of alcohol.

The official Guidance makes it clear that offers need to be looked at "in the round".

As this is just an annual event and a celebration evening, and the granting of some form of discount is custom and practice for such events, there would need to be clear evidence that the new mandatory condition was being breached in some way.

Certainly, the condition cannot apply to special offers involving non-alcohol items, and if they are having a table meal as part of the event, alcohol discounts would be exempt anyway.