Use of nutrition and health claims in trademarks and brand names

Many food products have trademarks or labels/names indicating that they have a positive effect on health. Such names can be interpreted as nutrition or health claims and may only be used if accompanied by a related nutrition or health claim in that labelling. However, exceptions have been in place for products placed on the market before 1 January 2005. For example, in the naming of these products, it has been possible to indicate a certain health effect without following up with an approved health claim. These exceptions have now expired.

Regulation (EC) No 1924/2006 on nutrition and health claims made on foods came into force in 2007. The regulation is binding on all Member States and concerns nutrition and health claims made in commercial communications, whether in the labelling, presentation or advertising of foods. According to the regulation, nutrition and health claims can be made only if certain conditions are met. A public EU Register of Nutrition and Health Claims lists all permitted nutrition claims and all authorised and non-authorised health claims.

The objective of these rules is to ensure that any claim made in the labelling, presentation or advertising of a food in the EU is clear, accurate and based on scientific evidence. The rules also promote innovation and ensure fair competition.

A nutrition claim is a claim suggesting that a certain food has special beneficial nutritional properties, for example due to nutrient content or calorific value (such as “high fibre”, “low fat”). A nutrition claim thus provides information about the content of a food and is only permitted if listed in the Annex of Regulation (EC) No. 1924/2006. For example, a nutrition claim may, in particular, highlight that a food contains a certain nutrient or that it contains particularly small amounts of a certain nutrient.

A health claim is a claim that states, suggests or implies that there is a relationship between a food category, a food, or one of its constituents, and health. There are different types of health claims. Firstly, there are the “Function Health Claims” (or Article 13 claims), for example relating to the growth, development and functions of the body. Secondly, there are “Risk Reduction Claims” (or Article 14(1)(a) claims)  on reducing a risk factor in the development of a disease. Thirdly, there are “Health Claims”, referring to children’s development’ (Article 14(1)(b) claims), for example: “Vitamin D is needed for the normal growth and development of bone in children”. Health claims may only be used if they are included in the lists of permitted claims.

As stated above, the rules stipulate that trademarks or product names that may indicate certain nutrition or health claims are not allowed, unless an approved nutrition or health claim is also made in the labelling. Although the regulation has been in force for a long time, because of transitional measures in Article 27.2 of the regulation, products bearing trademarks or brand names in existence before 1 January 2005 that did not comply with the regulation could continue to be marketed until 19 January 2022, after which date the provisions of the regulation apply.

As the period for this transitional measure has now expired, all products bearing trademarks or brand names on the EU market must comply with the rules on nutrition and health claims, irrespective of when they were launched. Therefore, it is important to review trademarks, product names and other similar labels that could contain nutrition or health claims to ensure that they comply with the regulation.

Examples from the Swedish Food Agency’s website of possible trademarks, product names or corresponding branding linked to health are Power, Active and Recovery. Such names (or parts of names) are considered health-related and must be accompanied by an approved health claim in accordance with Article 1 (3) of the regulation. The same applies to trademarks, product names or corresponding branding linked to nutritional content.

The responsible authorities,  in Sweden, the Swedish Food Agency (Livsmedelsverket), monitors compliance with the said rules.

We at Setterwalls have significant experience of the rules and will be happy to assist!