The rise of nutritional branding

Kumudu Ramasundara, the acting general manager of the trademarks and design group at IP Australia, says that while the trademarks registrar has the power to approve or deny trademarks, control of the use of these trademarks falls with someone else – in the case of food products, Food Standards Australia NewZealand (FSANZ), which is enforced by individual state authorities.

FSANZ is in the process of drafting the Standard for Nutrition, Health and Related Claims. The draft standard aims to ensure there is adequate scientific evidence for new health claims.

Under the current transitional standard, a package must not include the word “health” or any derivatives of this word in conjunction with the name of the food. But it is likely a product such as Uncle Toby’s HealthWise cereal, which has added sugar, can dodge this requirement by including the word in a trademark. The transitional standard fails to define just how closely linked words must be to “health”. 

Products such as preserved olives sold under the Always Fresh trademark or the mix of fresh and reconstituted local and imported orange juice sold under The Daily Juice Company banner, will not be covered by the new standard.

Federal trademark law trumps the application of food standards, which is carried out by individual state food authorities. Food labelling law expert Chris Preston says it is likely provisions in the current standard that rule against such trademarks are inconsistent with the trademark law, potentially making for “tremendous confusion”, especially when it comes to the words he describes as the unholy trinity – pure, fresh and natural.

“There is a sense that trademarks enjoy a special privileged status, and although this argument has its merits, we don’t know because there is no case law around this area,” Preston says. Despite this, he argues it wouldn’t be smart for new companies to embark on a marketing strategy that relies on a trademark that can’t be substantiated, because there are still avenues to pursue misleading conduct through the Australian Consumer Law.

The CHOICE verdict

It is important to remember that just because the brand name of a product suggests that it’s healthy or natural doesn’t mean it always is. Supermarket sections and, sometimes, entire aisles are dedicated to products promoted as “healthy”.

Coles and Woolworths have dedicated health food aisles in store and online, and while these aisles contain some healthy foods, such as nuts and dried fruits, they also have products that should be treated as more of an indulgence than a health food. 

CHOICE is part of a government-led process to develop a front-of-pack labelling system that would help consumers know at a glance whether or not a product is healthy, cutting through these claims.