3 November 2020 FOI_RBGK_2020-33

Your request for information

Thank you for your request for information which we received on 7 October 2020. Your request has been reviewed and responded to as a legal obligation pursuant to the Environmental Information Regulations 2004.

Your request

I have read that Royal Botanic Gardens, Kew (RBG-K) has a role in authenticating botanicals in the Herbal Essences bio:renew hair products by Procter and Gamble (PG).

I request:

1. Scientific reports prepared by RBG-K regarding authentication of the botanicals used in theProducts during 2019.

Our response

Please find attached reports prepared by Royal Botanic Gardens, Kew regarding authentication of the botanicals used in the Herbal Essences bio:renew hair products by Procter and Gamble (PG) during 2019.

Personal data such as names and contact details have been removed under regulation 13 of the Environmental Information Regulations 2004. Personal data of any other person (third party data) is exempt under regulation 13 of the Environmental Information Regulations 2004 if the information constitutes personal data (as defined by the Data Protection Act 2018) and disclosure would breach one of the data protection principles.

Furthermore, certain information has also been redacted under regulation 12(5)(e) of the Regulations. This regulation is known as an exception to disclosure. In this case, we are excepting information from disclosure as:

• The information is covered under a contractual obligation of confidence• Disclosure of the information would severely affect legitimate economic interests• The information constitutes a trade secret

When applying this exception, we are required to carry out a series of tests. These tests include the:

• Commercial confidentiality four-stage test• Public interest test

Both tests place an onus on public organisations to favour release of information. Therefore, we have considered these tests following Information Commissioner Office’s guidance as published on their website as of 8 October 2020.

Commercial confidentiality four-stage test

Pursuant to the 2010 Information Rights Tribunal ruling, to rely on this exception we are required to ensure all of the following applies:

• The information is commercial or industrial in nature. • Confidentiality is provided by law. • The confidentiality is protecting a legitimate economic interest. • The confidentiality would be adversely affected by disclosure.

The information is commercial or industrial in nature

We confirm that the withheld information is commercial and industrial in nature as:

• The information relates to a commercial activity between Kew and Procter & Gamble. • The information is a method of manufacture and is a precise formula used for making a

product.

Authentication of botanicals is a service that is being provided under a commercial contract between ourselves and Procter & Gamble. This service does not form part of our public task and is undertaken as an additional commercial activity.

We also deem that this information is industrial in nature. We maintain that authentication data (including methods of working, findings and conclusions) form part of the precise formula and part of the method of manufacture. This information is key to the authentication of the products and is unique for these purposes.

Therefore, we maintain that stage one of the four-stage test applies.

Confidentiality is provided by law

We confirm that the withheld information is confidential as:

• Confidentiality is imposed under contractual obligation

Having considered the contract between ourselves and Procter & Gamble, both parties are bound to confidentiality. Information withheld in this response has been assessed and it has been established that there is a necessary quality of confidence. The information is not considered trivial and furthermore does not already exist in the public domain. Information is held securely by both parties and is restricted to individuals to maintain confidentiality.

Therefore, we maintain that stage two of the four-stage test applies.

The confidentiality is protecting a legitimate economic interest.

We confirm that the withheld information protects a legitimate economic interest as:

• Disclosure would cause harm to the legitimate economic interests of Kew • Disclosure would cause harm to the legitimate economic interests of Procter & Gamble

We maintain that disclosure would cause harm to the legitimate economic interest of Kew as it would:

• discourage existing partners from renewing commercial partnerships with Kew. Botanical authentication is a highly competitive market – with just over forty organisations offering such scientific research worldwide. If other organisations were to consider that Kew did not handle commercial information confidentially, this would discourage future working partnerships. This ultimately would result in significant loss of future revenue for Kew.

• discourage third parties from entering future commercial partnerships with Kew. Botanical testing is a highly competitive market. If other organisations were to consider that Kew did not handle commercial information confidentially, this would discourage future working partnerships. This ultimately would result in significant loss of future revenue.

• affect our commercial reputation with third parties, including the public. Information contained in these reports has been prepared by qualified individuals and the information is considered highly technical. Disclosure of information into the public domain would result in future analysis made by laymen. We maintain that this would result in the production and dissemination of misinformation. This is a particular concern in our digital age where scientific information is published and reproduced online in forums lacking qualified scientific oversight and editorial scrutiny. An example of which can be found at:

https://royalsocietypublishing.org/doi/10.1098/rsos.190161

Any misinformation that has been produced by third parties and linked directly or indirectly to Kew research (up to which it is considered no longer an accurate portrayal of our data) would discourage other organisations from partnering with us. We maintain that this would tarnish the name of the organisation which would result in fewer people having trust in our brand and our research. This ultimately would result in third parties and individuals to not economically support, invest or partner with us.

• affect our competitive position in the marketplace. Authentication of botanicals is a highly competitive global market. With just over forty institutes around the world offering this service, Kew aims to be at the forefront of research into plants and fungi. Disclosure of our practices would result in other institutes understanding how we approach authentication in a commercial setting. This would allow other institutes to use our practices which would diminish our competitive edge. This would result in the loss of revenue for the organisation.

In applying this exception, we have asked for the views of Procter & Gamble. We have considered their comments and have identified the below. We maintain that disclosure would cause harm to the legitimate economic interest of Procter & Gamble as it would:

• impact the quality, sourcing and availability of the material. If the materials were to become more sought after by a larger audience, this would make good quality materials rarer. In turn, this would raise the price of the materials which would affect the economic position of Procter & Gamble,

• affect the confidentiality of the supply chain. If a larger audience were to be made aware of Procter & Gamble’s supply chain, competitors would be more likely to target the supplier. This would adversely affect/cause harm to competitive pricing arrangements with the supplier and severely disadvantage Procter & Gamble financially.

• impact the uniqueness of the products. Disclosure of recipes and ingredients (includingmaterial grade) into the public domain would lead to competitors replicating Procter &Gamble products. This would impact on Procter & Gamble’s competitive position in themarket and overall revenue generated.

• jeopardise future product releases. The withheld information contains information aboutingredients that have not yet been, or are to be used again, in future products. Disclosurewould lead to competitors manufacturing and releasing products before Procter &Gamble. This would impact on Procter & Gamble’s: competitive position in themarketplace (revenue would be lost and alternative products would be bought); affecttheir reputation (if considered products were copied) and; the uniqueness of theirproducts based on partnership research with a world leading institute.

Therefore, we maintain that stage three of the four-stage test applies.

The confidentiality would be adversely affected by disclosure

Disclosure of truly confidential information into the public domain would inevitably harm the confidential nature of that information by making it publicly available and would also harm the legitimate economic interests that have already been identified.

Pursuant to guidance issued by the Information Commissioner’s Office, the Commissioner considers that once the first three parts of the test are engaged, it is inevitable that the fourth part of the test is also engaged.

Therefore, we maintain that stage four of the four-staged test applies.

Decision

Having completed the four-stage test, we maintain that the information is commercially sensitive and therefore the exception is engaged.

Public interest test

The exception available under regulation 12(5)(e) is subject to the public interest test. Therefore, even when, as here, we consider the exception is engaged we must consider whether the public interest in maintaining the exception outweighs the public interest in disclosing the information.

Factors in favour of disclosure of the information you have requested include:

• Transparency – We acknowledge that there is public interest in how Kew operates. Thisincludes how we use Kew resources and the impact that our work has on the world.

• Authentication behind products used by the public – We accept that there may be somepublic interest by consumers who use these products in understanding the role andauthenticity of the botanicals used in the products.

Factors in favour of withholding the information you have requested include:

• Cost to the public purse – There is a public interest in public organisations such as Kew to increase its revenue from alternative sources so it can in turn invest more into its public tasks. Our public tasks are set out in the National Heritage Act 1983:https://www.legislation.gov.uk/ukpga/1983/47/contents.

• Working relationships - We maintain that disclosure of information would dissuade organisations from pursuing future partnerships with us. We have adopted confidential

working practices as is customary when collaborating with the private sector, which acknowledges and implements appropriate levels of transparency. We have concluded that on the balance of probability, disclosure of the information, in this instance, would discourage private organisations from entering future partnerships. It is firmly in the public interest for us to maintain healthy commercial relationships to both facilitate fulfillment of our public tasks and increase our revenue.

• Value for money - As a non-departmental public body, we are required to obtain the bestvalue for money for our contracts, services and partnerships. As previously explained, thisincludes having a greater expectation of commercial sensitivity on certain information. Itis therefore in the public interest to work with private, public and third-party sectors toachieve the best value for money.

• Revenue during Covid-19 - The public interest also firmly supports public bodiesincreasing their own revenue and relying less on central government funding – especiallywhen increased government funding is currently needed by other organisations inresponse to Covid-19. We also acknowledge that due to Covid-19, our resources havebeen affected. Our gardens, laboratories and workstations were forced to close due tothe UK’s approach in responding to the virus. The public interest firmly supports us as apublic body in recovering revenue through alternative funding streams. This allows us tobecome more self-reliant and less dependent on government funding. Furtherinformation about Kew’s position during this period was reported on the BBC:https://www.bbc.co.uk/news/uk-england-london-53407722

• Engaging with commercial partners on publicly available products– There is significantpublic interest in public bodies, which specialise in environmental causes, to work withcommercial organisations to ensure that products made use the best materials.Disclosure of the information would result in other organisations receiving informationand reaching their own conclusions (increasing the risk of public misinformation and/orthe creation of their own products without specialist input). It is firmly in the publicinterest for public bodies to use their resources for the greater good.

• Fair competition - The public have an interest in ensuring that Kew is able to maintain theconfidence of those parties who contract with it and both parties’ commercial interestsare protected.

Decision

Having completed the public interest test, we maintain that the public interest of withholding the information outweighs that of disclosure. As such, this exception is engaged.

Further information on this regulation and its application is available on the Information Commissioner’s website at www.ico.org.uk

Informative We hope that you are satisfied with the way in which we have dealt with your request.

However, should you not be satisfied, you can request an internal review by our Senior Legal Advisor, Ms. Tracy Dawkins. Once your request has been reviewed, you will receive a formal response within 20 working days. To contact Ms. Tracy Dawkins, please email t.dawkins@kew.org.

If you remain dissatisfied with the way in which RBG Kew has dealt with your request, you are entitled to ask the Information Commissioner’s Office (ICO) to review our decision. Information on how to contact the ICO is available on their website at www.ico.org.uk.

PHYTOCHEMICAL ANALYSIS for P&G January 2019 Kew Sample Reference: CONFIDENTIAL

Analysis and report: , checked by 2/3

Figure 1: (recorded as the freeze-dried product redissolved in

D2O).

2. Organic acids

The sample was analysed by LC-MS. Peaks were identified by comparison with standard injections,

and the elution sequence presented by . Acetic, malic, lactic, citric and succinic

acids were observed. Acetic ( ), lactic, and succinic acids are

; malic acid ; and citric acid is a common

natural preservative.

Figure 2. Chromatogram of organic acids in (positive ESI, upper chromatogram; PDA,

lower chromatogram). 2.6 minutes ; 3.4 minutes ; 4.1 minutes ; 6.2 minutes

; 8.4 minutes .

3.

are not present in the but rather in . therefore

indicates a . LC-MS was used to compare this product with a

sample of , which does contain .

was identified in the sample and there is no comparable peak in the chromatogram of

the sample under test.

Time (min)

PHYTOCHEMICAL ANALYSIS for P&G January 2019 Kew Sample Reference: CONFIDENTIAL

Analysis and report: , checked by 3/3

Figure 3. LC-MS chromatogram of (positive ESI, upper chromatogram; negative ESI, lower

chromatogram). can be identified around .

PHYTOCHEMICAL ANALYSIS for P&G 15th April 2019 Kew Sample Reference: CONFIDENTIAL

Analysis and report: , checked by 3/3

Disclaimer

1. The relative quantification of compounds in the sample was obtained with a mass spectrometry detector and percentage composition may change if a flame-ionization detector (FID ) is employed.

2. Experimental results may vary if other batch or samples are analysed or if different methods are employed for derivatization and GC-MS analysis.

References

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