Tuesday, September 04, 2007

The end of the hamburger: marketing restrictions relating to food
By Dr W Alberts

In proposed regulations recently published in the Government Gazette, amendments to the Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972 were published for comment. The Bill contains a considerable number of definitions which indicate that it could find quite a broad application in a health context. However, there might also be implications for trade mark proprietors. The definitions section contains descriptions of various everyday products. These include "chocolate confectionary", "cereal," "dairy products," "frozen meat," "poultry" and other similar goods. Also defined is "water"! There is a general prohibition on the manufacture or sale of food products that do not comply with the regulations. One of the requirements of the regulations is that the nutritional information of particular food products should be indicated in a specific format and this is prescribed in fine detail (with regard to letter size, the product’s name must be at least 4 mm high). The country of origin must be indicated clearly. Moreover, the date of durability must be indicated.

There are also regulations regarding the use of various words, such as "natural", "fresh", "light", "healthy", "wholesome", "balanced nutrition", "sustained energy", "pure", and "vegetarian". In terms of traditional trade mark principles, these terms are not registrable, being descriptive. However, according to the food regulations, they are more significant. Applicants for the registration of trade marks for food products in classes 29 (fish, meat etc) and 30 (coffee, bread etc) on the Trade Marks Register will thus have to bear the regulations in mind. The more so as trade mark applications are sometimes based on the actual label of the product, which could contain apparently "neutral" descriptive wording. It may be that the Registrar will not, of his own volition, require proof of compliance with the food regulations. However, it seems entirely competent for a competitor to oppose another competitor’s trade mark application on the basis that it does not comply with these regulations. Another option might of course be to lodge a complaint with the Advertising Standards Authority.

There are also specific provisions dealing with claims on the label of a food product, for instance the claim that a particular product is suitable for diabetics. Interestingly, the regulations determine that the front of a food vending machine must have a notice indicating the name of the food product, except where such name appears on the label of the product in such a manner as to be easily visible and legible to a prospective purchaser from the outside of the machine. The regulations are also strict in so far as making a comparison of the fat, sugar, salt or alcohol level of food products is concerned. This occurs when the claims "reduced", "less than", "fewer" and "light" are made on a label or in an advertisement for the food product. In so far as probiotic claims are concerned, there is a prohibition on any claims relating to food products intended for infants and young children up to the age of three years.

In so far as slimming claims are concerned, which are often controversial in nature, it is required that the product must be labelled with the words "Only effective as part of an energy-controlled prudent diet and an increase in moderate physical activity". There are also prescriptions as to the use of the word "diet". It must be noted that the "pictorial representation" on the label of a product must not be misleading as to the contents thereof. Also, it must be made clear, through the use of words such as "serving suggestion", that a particular product is not contained in the packaging – with the exception of chocolate and sugar confectionary.

The most controversial part of the regulations relate to certain products which are considered not to be essential for a healthy diet and for which no claim with a nutritional message can be made. These products include soft drinks (bearing the words "energy", "power", or "sport"), iced teas, muffins, doughnuts, chewing gum, and potato crisps. Also included are fast foods, ice cream, health or energy bars, sweetened condensed milk and coffee creamers. In this regard the regulations provide that such products shall not be advertised in any manner to children younger than sixteen years. The regulations will not only affect "real" people, but also entities such as Superman, Mickey Mouse, the Simpsons, the Little Mermaid and the Ghostbusters. This is because it is not allowed to use any cartoon-type character or puppet, computer animation or similar strategy or token or gift in order to encourage the use of the products. A child actor younger than sixteen years may, likewise, not be used. These "non-essential" products shall also not be advertised or promoted in any manner in a school tuck shop or on any school or pre-school premises.

The above raises, amongst others, the practical issue of current trade mark registrations. Trade mark law makes extensive and open use of a trade mark imperative. The food regulations are aimed at the opposite. Would it be permissible to continue to use, for instance, Shrek to sell chewing gum? If the regulations are seen to apply to existing registrations, it could imply that some marks would have to be abandoned in relation to certain goods in order to comply with the regulations. Many motion pictures aimed at children are marketed in conjunction with some "undesirable" food product. Would it now be impossible for certain types of films to be linked with non-essential food products in a promotional campaign? These could be drastic implications. One can envisage a situation where a mark containing a cartoon character is refused registration for a food product until such a time as it is proven that the mark will not be used to advertise the product to consumers younger than sixteen. Is this feasible? Furthermore, how does a company aim its advertising at people above 16? Persons of all ages are of course exposed to television broadcasts and advertisements in the printed media.

There is, lastly, also a philosophical aspect. Many of the issues that arise when the regulation of the sale of "harmful" substances, speaking broadly, are discussed, are also relevant here. In the case of tobacco products, it was decided that the negative consequences considered to be associated with the use of such products justify an absolute prohibition on advertising. In the case of alcoholic products, advertising is still allowed, but there are certain restrictions. Much like the introduction of laws forcing motorists to wear seat belts, or motorcyclists to wear helmets, one is faced with the dilemma as to where the individual’s rights end, and where the state’s duty to protect its citizens begin. If the proposed food regulations are accepted, it may be that younger citizens will live healthier lives, but with less fun (and fewer hamburgers).