Brand owners need protection from health claims regulation

The UK Patent Office has issued a notice outlining, in relation to the possible consequences for owners of brand names (including registered and unregistered trademarks), the United Kingdom's formal position on the European Commission's proposed Regulation on nutrition and health claims made on foods (including food supplements).

The proposed regulation signals a major change of attitude on the commission's part to health claims on foods, and this change is likely to be reflected in the marketing strategy of food and supplement producers and distributors. The existing EU rules on labelling and advertising of foods, and on nutrition labelling on foodstuffs, contained in Community Directives 2000/13 and 90/496 respectively, do not define conditions for the use of nutrition claims and actually prohibit health claims from being made. Moreover, as the commission concedes, they are often not properly enforced.

Taking a different approach, the new regulation will:

• specify the conditions for the use of nutrition and health claims;
  
  
• prohibit certain claims; and
  
  
• "scientifically evaluate" the use of claims in relation to the nutritional profile of foods.

In principle, while no food product itself will be prohibited, claims on food products should actually mean something to the consumer. This has clear implications for brand names that may be considered as nutritional health claims and therefore potentially in breach of the proposed regulation.

In its notice, the Patent Office states that although the degree to which brand owners will be affected will depend on the text of the final regulation, it is clear from the current draft that there could be implications for brand names, particularly in relation to ranges of 'healthy option' products. The Patent Office confirmed that the United Kingdom will take steps to influence the proposal through the ongoing negotiations to reduce as far as possible the negative impact on brand owners.

The United Kingdom is proposing that brand names should be excluded from the scope of the regulation provided they are accompanied by a permitted claim. According to the Patent Office, this proposal combined with a transitional period (proposed by the commission) of 18 months should strike a balance between the rights of brand owners and the need for a solution that protects consumers from misleading claims.

Tanya Theobald, Hammonds, London