HEALTH CLAIMS VS TRADEMARKS

Trademarks vs. health claims! Did you know that registered trademarks, like health claims, are also subject to control when used in the labeling and advertising of dietary supplements and foods?

Health claims are regulated in Regulation (EC) 1924/2006 of the European Parliament and of the Council of December 20, 2006 on nutritional and health claims on foods, which includes both the definition of health claims, in addition to regulating their scope of application as well as the requirements that these claims must meet in order to be used, not only in the labeling of food supplements and foods but also in advertising and/or promotional campaigns for them (TV, radio, web, etc).

The aforementioned Regulation harmonizes the laws, regulations or administrative provisions of the Member States relating to health claims, in order to ensure the efficient functioning of the internal market while providing a high level of consumer protection.

HEALTH CLAIMS

Having said all this, what is a health claim? It is defined as any statement that states, suggests or implies that there is a relationship between a food category, a food or one of its constituents, and health. Health claims may include not only messages but also any form of pictorial, graphic or symbolic representation that states, suggests or implies that a food has any specific healthy characteristics.

Generally speaking, health claims may not give false or misleading information; raise doubts about the nutritional safety of other foods; encourage excessive consumption of a food nor refer to changes in corporal functions that could create alarm in the consumer or exploit their fear, both textually and through pictorial, graphic or symbolic representations.

Regarding the conditions that must be met for health claims to be used, we find the following:

a) If the presence, absence or reduced content, in a food or a category of foods, of a nutrient or other substance for which the claim is made has been demonstrated to have a beneficial nutritional or physiological effect, established by scientific data generally accepted;

b) If the nutrient or other substance about which the claim is made:

i)                    is contained in the final product in a significant quantity as defined in Community legislation or, in cases where there are no relevant standards, in a quantity that produces the declared nutritional or physiological effect, established by generally accepted scientific data, or

ii)                   is not present or is present in a reduced amount that produces the declared nutritional or physiological effect, established by generally accepted scientific data;

c) if, when relevant, the nutrient or other substance about which the declaration is made is in a form assimilated by the organism;

d) whether the quantity of the product that can reasonably be expected to be consumed provides a significant quantity of the nutrient or other substance referred to in the claim, as defined in Community legislation or, in cases where there are no relevant standards, a significant amount that produces the claimed nutritional or physiological effect, established by generally accepted scientific data;

Therefore, a general health claim must be accompanied by (i) a specific health claim, authorized for any of the ingredients of the product included in Commission Regulation (EU) 432/2012 of May 16, 2012 establishing a list of authorized health claims for foods other than those relating to the reduction of the risk of disease and the development and health of children or, accompanied by (ii) an on-hold or pending health claim not yet evaluated by EFSA, that is, those health claims on which EFSA has not yet ruled on whether there is a relationship between the specific ingredient and the declared effect.

Finally, it should be noted that health claims should be made about the ingredients of the product and not about the final product (food supplement or current foodstuff itself).

TRADEMARKS

At this point, it should be noted that everything stated above is equally applicable to those products that are marketed under a brand that, in turn, is considered a health claim.

In this sense, the fourth recital of the aforementioned Regulation 1924/2006 provides that: “This Regulation must also apply to brands that can be interpreted as nutritional and health claims.”

Article 1.3 of the aforementioned Regulation 1924/2006 provides that “a registered trademark, a brand or an arbitrary designation that appears on the labeling, presentation or advertising of a food, and that can be interpreted as a nutritional or health claim, may be used without undergoing the authorization procedures provided for in this Regulation provided that it is accompanied by a nutritional or health claim in labelling, presentation or advertising that complies with the provisions of this Regulation.”

Furthermore, article 27 on Transitional Measures provides: “Products bearing registered trademarks or brands existing before January 1, 2005 that do not comply with this Regulation may continue to be marketed until January 19, 2022, date from which The provisions of this Regulation will apply to them.”

Therefore, in the case of products (foods or food supplements), whose labels or advertising media refer to a brand that in itself is considered a health claim, it must be accompanied by a specific health claim authorized for any of the ingredients of the product.

In the event that no specific health claim has been authorized for any of the ingredients of the product or any health claim pending evaluation by the EFSA, the labeling or advertising that includes the brand will not comply with the applicable regulations and therefore, susceptible to request by the competent Administration.

Do you want to expand this information related to health claims made on dietary supplements and foods? Contact LexSupplements and we will help you.