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Challenging ‘Health Claim’ Trade Marks

August 6, 2010

The EU Regulation on nutrition and health claims made on foods (see here) were passed in 2006 to ensure consumers were not mislead by unsubstantiated health claims on food packaging. With a greater interest in health foods and supplements in the UK (£320 million spent on vitamin supplements alone, see here) this regulation is evermore in the spotlight. The body charged under the Regulation with verifying the scientific evidence supporting such claims is the EFSA and, to date, of the 900 claims reviewed, 80% have been rejected (see here). Once a decision by the EFSA has been made then this should be approved by the Commission, which allows an appeal process and gives six months post-decision for implementation.

 An interesting aspect is that the Regulation does not just cover the claims on the package such as the small print, but actually the use of product names, brand names and trade marks (see here). This is where for example the brand name infers claims as to the nutritional quality or health effect of consuming the product. Examples of brand names which may be affected are SLIM FAST and WEIGHT WATCHERS. In relation to SLIM FAST,  Helen Darracoft a regulatory expert with a UK healthcare trade body says that their rebranding may be inevitable. She says the “actual name of the product is a health claim in effect – it slims and it does it quickly – and therefore it’s a claim which talks about the rate of weight loss so this will actually fall foul of the regulation.” Further, of the rejected list of health claims published by the European Commission the majority involve the use of trade marks (please see list here). An example is the product EYE Q, which is registered as a trade mark in the EU where claims that EYE Q products can support healthy brain development have been rejected by the EFSA. Here the trade mark EYE Q obviously bears a connection with the abbreviated term IQ.

The EU health claim regulation stipulates that trade marks appearing in labelling “which may be construed as a nutrition or health claim may be used without undergoing the authorisation procedures”. The authorisation procedure is as described above, namely applying to EFSA to authorise the health claims on labelling. That being said this exemption for a ‘health claim’ trade mark is conditional on the trade mark being “accompanied by a related nutrition or health claim in that labelling, presentation or advertising which complies with the provisions of this Regulation” (please see Article. 1(3) of Regulation). So even though the trade mark itself need not comply with the authorisation procedure the specific health claim associated with the mark does. In any case, it still remains unresolved whether a ‘health claim’ trade mark, once registered, can be challenged on the grounds of these regulations, as in the example of SLIMFAST above.