A recent case provides an interesting look at the foods standards regulations and how they apply to trademarks in the context of claiming health benefits of certain foods.
In the recent case of Honey New Zealand (International) Ltd v Director General of the Ministry of Primary Industries  NZHC 2764, the New Zealand High Court ruled that Honey NZ’s trademarks MANUKA PHARM and MANUKA DOCTOR amounted to unlawful health claims and could not be used on the company’s products. Honey NZ appealed the decision. While the Court of Appeal’s decision has been reserved, the case provides an interesting look at the foods standards regulations and how they apply to trademarks in the context of claiming health benefits of certain foods.
The New Zealand Ministry of Primary Industries introduced interim labelling guidelines for manuka honey in July 2014 based on the requirements of the Australia New Zealand Food Standards Code 2012. According to ministry guidelines, no therapeutic or health claims can be made on honey food products as it does not meet the requirements contained in Standard 1.2.7 of the code covering “Nutrition, Health and Related Claims”.
In October 2014, the ministry warned Honey NZ that its brand names constituted health claims and therefore breached the food labelling standards for manuka honey . Consequently, Honey NZ was no longer able to export its products to certain markets under these brand names which it had registered as trademarks and had been trading under for some time.
Honey NZ challenged the ministry’s decision to ban its exports on the basis that the marks were not health – or therapeutic – claims as defined in Standard 1.2.7. The High Court had to tackle the issue of applying the standard to the interpretation of a label, which arguably also intersected with trademark law.
It was commonly accepted that nothing else on the products’ labels could be seen as a health claim and therefore this could only be generally implied from the words (or marks) themselves.
The ministry claimed that the labels implied in an unspecified way that manuka honey has properties that are good for your health, and thereforeit was not permissible under Standard 1.2.7.
Honey NZ contended that “the code is aimed at controlling claims about identifiable health benefits, not general vague claims that are at most puffery”, and that it should not be interpreted so loosely as to interfere with the legitimate use of registered trademarks. In the context of how the marks were used, with a registered ® symbol and as an identification of the origin of the product, consumers would not infer that the marks were making health claims about its products.
This view was rejected in favour of the ministry’s argument that in the context of manuka honey, which is more expensive than ordinary honey and is generally recognised to have health benefits, this increased the possibility of a benefit claim being inferred from the labels. The lack of any other connection between those concepts and the product in question (ie, honey) meant that the marks achieved more by linking them to the product or an aspect of the product. PHARM was seen to be more borderline than DOCTOR on this point. In reaching this conclusion, the High Court looked at the wider purposes of Standard 1.2.7 and found that nothing was suggestive that this would allow for unproven general claims about the health effects of food. The fact that this came about by way of a trademark was irrelevant.
The High Court’s interpretation of Standard 1.2.7 in this instance appears to be at odds with trademark registrability principles in New Zealand and traditional marketing puffery. From a trademark practitioner’s point of view, distinctiveness is encouraged and marks alluding to the nature of the goods or services but not directly describing them are often considered to be a good brand. Consumers are used to seeing trademarks function as just that – brands. This case will give cause for further thought when registering trademarks in relation to health foods.
This article first appeared in World Trademark Review and was written by Stephanie Melbourne, James & Wells. Stephanie works with our Christchurch team as a Solicitor in our trade mark and commercial law team, handling associated commercial and corporate matters regarding trade mark, copyright and Fair Trading law. For more information and for expert IP advice contact Stephanie on email: firstname.lastname@example.org or phone 0800 INNOV8.