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Not so super ‘superfood’

11 December 2016 by Paul Harris

Intellectual property: Not so super ‘superfood’ - read more

The regulations relating to food nutrition and health claims are complex and strictly enforced

They say that adversity is the mother of all invention. The creative ingenuity of Leon Restaurants Limited and their advisors in seeking to avoid a negative ruling before the Advertising Standards Authority (ASA) provides ample proof that this saying is alive and well.

Food glorious food

Those of you who have frequented the various branches of Leon Restaurants may well have browsed the salad section on the menu and noticed there was a dish described as ‘Original Superfood Salad’. It begs the question: ‘what are superfoods?’

In an article by Christopher Wanjek (11 May 2015 in Live Science) superfoods have been described as foods ‘thought to be nutritionally dense and thus good for one’s health’.

However, as the article points out, there is no set criteria for determining what is and what is not a superfood according to the American Heart Association. Although, the examples of superfoods the article gives are blueberries, salmon, kale and acai (a berry from a palm tree, with alleged anti-aging properties).

In a lovely quote from a registered dietician, Ms Despina Hyde, she says, ‘As a dietician I think “superfood” is more of a marketing term for foods that have health benefits’. Quite so, Despina.

Authorised health claim

Someone, for some reason, decided to complain to the ASA about Leon Restaurants’ use of the term ‘Original Superfood Salad’. Whatever their reason for doing so, it was pointed out that as a food it was subject to EC Regulation number 1924/2006 on nutrition and health claims made on foods, and as such, was covered by the CAP Code for advertising.

In particular, Rule 15.2 refers to the fact that stating the general benefits of a nutrient or food for overall good health or health-related well-being would only be acceptable if accompanied by a specific authorised health claim. Clearly, on the menu on Leon Restaurants’ website, and presumably the restaurant as well, there was no such claim.

Leon Restaurants acknowledged that ‘superfoods’ was making a general health claim. However, as it had been using the term since 2004 as a brand name, its use was exempted by reason Article 28(2) of the regulation.

That provision states that ‘products bearing trademarks or brand names existing before 1 January 2005 which do not comply with [the] Regulation may continue to be marketed until 19 January 2022 after which time the provisions of [the] Regulation shall apply’.

Most of you would be forgiven for thinking that was taking the biscuit somewhat − desperate times require desperate measures and frankly, this was as desperate as they come. To be a brand name or a trademark, the term has to function as an indicator of source or origin of the goods.

Nevertheless, Leon Restaurants, to prove the trademark point, provided sample menus from 2004, a food review in The Times from 2004, a photograph in an article (albeit published in 2005) from 2004 that showed the menu in the background with four dishes under the heading ‘Superfood Salads’ including ‘Original Leon Superfood Salad’, among other things.

General health claim

The ASA considered ‘superfoods’ would be understood, although it does not say by whom, as relating to the general benefits of the product or its ingredients for overall good health or health-related well-being. As such, ‘Original Superfood Salad’ was a general health claim.

Accordingly, a trademark making such a claim must be accompanied by a permitted nutrition or authorised health claim in the advertising (in accordance with Article 1(3) of the regulation). The exemption in Article 28(2) would only apply if the trademark fell within Article 1(3).

The most obvious evidence would be to have a registered trademark, but Leon Restaurants did not have one and so the approach taken by the ASA was to ask whether the mark ‘Original Superfood Salad’ would have been protected by the common law action of passing off.

The wrong test

Unfortunately, in this author’s eyes, that was completely the wrong test. A passing off action enables a trader to protect not just trademarks or brand names, but also certain terms or descriptions. In the classic case of Reddaway v Banham in 1896, the House of Lords upheld that the term ‘camel hair belting’ had acquired a secondary meaning and so was protectable by way of a passing off action.

The regulation refers to marks, which must function as indicators of source or origin of goods, not simply descriptive terms. The approach the ASA ought to have taken is whether, as at 1 January 2005, Leon Restaurants could have achieved a trademark registration. By following this approach, the ASA would have been more in line with the approach of trademark registries around the world.

It would have considered whether this mark was capable of distinguishing one undertakings goods from those of another, whether it was devoid of distinctive character, a descriptive term or even common within the trade.

To the extent it was devoid of distinctive character, descriptive or common within the trade, it would have been for Leon Restaurants to provide supporting evidence to show that the use of it has enabled the term to acquire that distinctiveness.

Moreover, the ASA’s reasoning suggests it did not grasp the requirements for a passing off action, and what ‘goodwill’ and ‘reputation’ mean. In passing off actions, goodwill is the attractive force which brings in custom – in other words, customers who purchase the goods under or by reference to the term.

The key in this case would have been ‘reputation’, which is whether the general public consider the term has achieved a secondary meaning, the use by another trader of which would be misleading and cause deception and confusion (leading to damage).

Despite this, the ASA concluded ‘superfood’ would not be protected, and so considered descriptive. The ASA regarded the use in the menu as not falling under the Article 28(2) exemption and so Leon Restaurants had breached the CAP Code. It was told not to make the claim again unless accompanied by a permitted health or nutrition claim.

From puffery to harmful

It is unfortunate that the ASA has taken the wrong path in deciding this case, albeit that (in this author’s mind) it has achieved the right result (perhaps the most important thing). The field of EU food regulation is vast and a complex minefield. The regulations relating to nutrition and health claims are strictly enforced − in the UK by Trading Standards.

What is perhaps surprising in this case is that it has taken so long for someone to complain about the use by Leon Restaurants if it was so obvious (over 11 years). In this politically correct, highly regulated world of nutrition and health claims, what was once (as Ms Hyde described it) marketing speak, or ‘puffery’, has now been moved to the ‘harmful’ inbox of Trading Standards. It is another example of the state, or in this case Brussels, protecting us from being deluded into thinking that by choosing Leon Restaurant’s Original Superfood Salad we are benefiting our health.

At best, the term may persuade those who were going to choose a salad to choose the Superfood Salad but I highly doubt it would persuade the person about to order the chicken and chorizo club with fries into changing their minds.

Incidentally, the online menu is still showing ‘Super Salads’, with the chargrilled chicken and chorizo club being served on ‘our super salad base’. So I guess the ASA really taught Leon Restaurants a lesson!

Paul Harris is a Partner at Venner Shipley Legal Limited

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