Last year, the honey industry and trade mark practitioners alike were keeping a close eye on the battle ensuing between the Ministry of Primary Industries and Honey New Zealand (International) Ltd over whether Honey NZ’s MANUKA PHARM and MANUKA DOCTOR registered trade marks amounted to unlawful health claims.

After Honey NZ was effectively stopped from exporting their MANUKA PHARM and MANUKA DOCTOR products to certain markets in October, they took the case to the High Court, which subsequently ended up in the Court of Appeal. Honey NZ challenged MPI’s decision to ban their exports on the basis that the MANUKA Marks were not health claims (or therapeutic claims) as defined in Standard 1.2.7 of the Australia New Zealand Food Standards Code.

In the High Court, the Judge found in favour of MPI’s argument that use of the MANUKA Marks implied that, in an unspecified way, mānuka honey had properties that would be “good for your health”. This caused marketers and brand strategists within the food industry to take note and questions were raised as to where the bar would stop for implying a health claim into a brand name or statement which was traditionally considered marketing puffery. Equally, how could this be reconciled with other existing food brands which contained the words DOCTOR or PHARM?

Honey NZ pursued the MANUKA DOCTOR mark only in the Court of Appeal, which fortunately found in favour of Honey NZ’s arguments at a hearing on 4th February this year. It was confirmed that any permissible health claim set out in the Code would always require an identified health effect. More importantly, the Court emphasised that there would be certain categories of claims that don’t come within the Code. Parallels were drawn between “farm fresh” and “MANUKA DOCTOR” as both statements imply the product would be good for you. The possibility of consumers being misled by such claims would be adequately regulated by the Fair Trading Act 1986.

The Court went on to note that the argument that consumers would associate “DOCTOR” with health, healing and medicine was particularly strained. Even in the context of mānuka honey which is more expensive than ordinary honey and is generally recognised to have health benefits, it was considered unlikely that “a substantial number of relevant consumers exercising reasonable care would make that association.” Examples were given of other “DOCTOR” marks on the market where this was the case, such as DR PEPPER, DOCTOR CRACKER and RUG DOCTOR. Further in the context of the label in this case, consumers were more likely to interpret the words “MANUKA DOCTOR” as relating to the expertise of the producers and the assurance of the purity and quality of the honey through the UMF grading system.

What we can take out from this decision is that the Code is clearly aimed at claims of specific measurable health effects. However, where a mark or statement is attempting to imply a health claim and this isn’t covered under Standard 1.2.7, don’t be surprised if this attracts the attention of MPI. Where consumers are misled about the health benefits, this will also be regulated by the Fair Trading Act 1986.

Whether the mark is registered as a trade mark or not will not affect how it is interpreted under the Code, and in fact there is still scope to be creative with trade marks and slogans to incorporate health claims and tie these in with your brand. To do so it is advisable to seek the opinion of an Intellectual Property specialist to make sure you've covered all your bases.