IS YOUR TRADEMARK A HEALTH CLAIM? PREPARE FOR THE END OF THE EXEMPTION NOW

Trademarks and brand names existing in the EU before January 1, 2005 have benefited for nearly 15 years from a temporary exemption to the Nutrition and Health Claims Regulation pursuant to Article 1(3) thereof[1] (the Claims Regulation). Names such as “SlimFast”, “Healthy”, “Good for health”, “Vital”, “Fits” or “Anti-aging” have been permitted without having to be accompanied by a specific, authorized health claim.

However, the end of the transition period is approaching with only 18 months left for January 19, 2022. Companies need to prepare for this deadline in order to get fully compliant with the Claims Regulation.

How do I prepare for January 2022?

After the legal deadline, trademarks, brand names or fancy names with a nutrition or health claim embedded in their name, graphics or visuals that could lead to consumer interpretation of a nutritional or healthy characteristic of the product, should be accompanied by a specific and authorized claim of relevance.

There is no particular guidance on how the specific claim must be related to the trademark, but the EU Guidelines for the implementation of specific conditions for health claims (the “EU Guidelines”) can be applied by analogy. Thus, a trademark or product name should be accompanied by a relevant authorized claim. As the reference becomes broader e.g. “good for health”, more health claims from the permitted list could be eligible to accompany it.

It is important that the accompanying health claim is related to the authorized ingredient responsible for the health effect and not to the product or trademark itself. Otherwise it could mislead consumers by suggesting that only that particular brand could have the generic health benefit claimed, whereas other foods would deliver the same benefit as long as they comply with the conditions of use. For example, instead of claiming “’Trademark/Brand name’ contributes to the normal function of the immune system”, the authorized ingredient with this health attribute should be mentioned, e.g. “Vitamin C contributes to the normal function of the immune system”[2].

Where should the accompanying authorized claim be located?

There is no specific guidance on the spatial relationship between the trademark and the specific claim, but the EU Guidelines can be used as a safe harbor again. Thus, specific, authorized claims should appear ‘next to’ or ‘following’ the general statement. In practice, most Member States accept if the specific claim appears in a footnote to the general claim in the same field of vision.

This practice was confirmed by the Court of Justice of the EU, which ruled that the use of an asterisk can serve as the connection between the general statement and the specific health claim[3].

Is it possible that my trademark or brand name has to change?

If there are no specific, relevant claims to accompany the general claim made on the trademark or brand name, these will not be allowed and will have to be changed or removed.

For example, all probiotic claims assessed by the European Food Safety Authority (EFSA) have received an unfavorable opinion, and thus they have not been authorized for use on the EU market. Therefore, the use of trademarks or brand names containing the word “probiotic” will not be allowed, with the exemption of some EU Member States with their own administrative practice, such as Italy or the Netherlands[4].

In other cases, health claims may not have been authorized but they are pending an assessment by EFSA or a decision by the European Commission; these are the so-called ‘on-hold’ claims. Certain trademarks or brand names may be able to use these claims and benefit from a transitional period until a decision is made by the European Commission, subject to applicable national rules (e.g. claims related to “detox” may benefit from ‘on-hold’ claims for specific plant substances which refer to detoxification properties).

Getting ready for full compliance

In conclusion, as the deadline for the end of the transitory provision for trademarks and brand names is fast approaching, with only 18 months left to bring labels and advertising in accordance with the Claims Regulation, it is recommended companies start revising their artworks and advertising material.

For further information, please contact us: info@foodcomplianceint.com

[1]          According to which, “A trade mark, brand name or fancy name appearing in the labelling, presentation or advertising of a food which may be construed as a nutrition or health claim may be used without undergoing the authorisation procedures provided for in this Regulation, provided that it is accompanied by a related nutrition or health claim in that labelling, presentation or advertising which complies with the provisions of this Regulation”.

[2]         In some cases, the trademark may necessarily have to be present in the wording of a health claim. This is so when a patented active ingredient, which is, at the same time, the product’s brand, has obtained an individual authorization pursuant to the Claims Regulation.

[3]         Court of Justice of the EU, Case C‑524/18, Dr. Willmar Schwabe GmbH & Co. KG v Queisser Pharma GmbH & Co. KG., ECLI:EU:C:2020:60.

[4]         The term “probiotic”, however, could be used on the basis of other EU provisions.