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.

Accuracy of labeling has often led to some interesting results. For example, the FSA states that in order for a food “to be called ‘chocolate’ [… it] must have a certain amount of cocoa solids”. Further ‘chocolate’ must not have more than 5% vegetable fat. This minimum standard had even partly affected household names, such as Cadbury’s, from selling their products in Spain and Italy, as the latter were alleging that Cadbury’s chocolate should be labeled as chocolate substitute not chocolate due to its high milk content. In 2003, the ECJ found that both Spain and Italy were breaching EU trade mark laws with such requirements.

So accuracy and compositional compliance in labeling is vital, but what of the marketing of foods sold across Europe. Obviously there are a number of ‘Euromyths’ that distort somewhat the EU standardisation effort. But that being said, for over 20 years, the marketing of foods in the EU has been a tightly regulated area where regulations go as far as stipulating the size and shape of 36 categories of foods. However, in the context of reducing bureaucracy, edible waste and being sensitive of the current economic crisis, since July of this year, new EU regulations have removed such stipulations for 26 of the 36 categories. The implication being that the knobbly carrot and bendy cucumber should now find its way back in our supermarkets and grocery stores (please see Stole Rives LLP Blog).