Implementation Order Regarding the Approval Procedures of Food Supplements (“the Order”) has recently been amended by the Ministry of Food, Agriculture and Livestock (“MoA”) and the new version of the Order has been published on the MoA’s official website on April 06, 2018. The Order has been amended as it now explicitly forbids use of pharmaceutical trademarks licensed by the Ministry of Health (“MoH”) and whose licenses are still valid as a trademark of the food supplements in line with the established practice of the MoA.
Although the Order previously forbidding such use with its 30th paragraph which reads “Names and brands of products licensed by MoH shall not be used for food supplements.”, this provision has been removed from the Order at July, 2017. This has caused the question to be raised whether the pharmaceutical brands are allowed to be used as a brand of food supplements.
However, now with the change of Order, this issue became clear. Moreover, the MoA now has brought additional obligations to those who wish to obtain a license for food supplement in relation to their license application in order to ensure the effectiveness of this rule. Accordingly, the companies now have to submit an undertaking indicating that trademark of the food supplement is not a pharmaceutical trademark licensed by the MoH within the application file for the approval of food supplement to be submitted to the MoA. When the food supplement approval application is being reviewed by provincial directorates of the MoA; in case of a suspicion with this regard; provincial directorates may request a trademark registration certificate from the applicant company.
Further, according to the new amendment to the Order, approvals for trademarks of food supplements whose approval have been issued by the MoA despite the fact that they are licensed by the MoH will be rendered inactive on the Food Safety Information System established by the MoA. Owners of such food supplements shall have to submit a petition to provincial directorates of the MoA informing the shelf life of products currently on the market and those products will be allowed until the end of their shelf life.
Although pharmaceutical trademarks licensed by the MoH cannot be used as a trademark for food supplements; pharmaceutical trademarks which are previously licensed by the MoH but their license are revoked afterwards can be used as a trademark for food supplements. Accordingly, the validity of MoH’s license is important for branding food supplements.
Accordingly, it seems that the MoA is now more determined to prevent the use of pharmaceutical trademarks for foods supplements due to their various sensitivity. To put it more clear, as it is known, as per the Pharmaceuticals and Medical Preparations Law No. 1262, any advertisements concerning the pharmaceutical products are prohibited irrespective of whether they are sold with or without a prescription and can be made only to the medical staff. If the pharmaceutical brands are used for the food supplements that are not subject to any prohibition on advertising, when such products are advertised and promoted, said advertisement and promotion activities can also be associated with the pharmaceutical products sold under the same brand and this would lead to promotion of the pharmaceutical trademark indirectly and be contrary to the purpose of the arrangement intended by the Pharmaceuticals and Medical Preparations Law No. 1262. The MoA has been very sensitive to avoid such situation and also active in using all its means for preventing any use or advertisement that may lead to food supplements being perceived as pharmaceuticals, and therefore it seems that they wanted to keep the relevant rule in its written Order again in a more strict way.
In the light of above, the companies who have approvals for food supplements contradictory to the above rule shall make the relevant applications and from now on, branding for food supplements shall be made more carefully.