Who: Leon Restaurants Ltd (“Leon”) and Advertising Standards Authority (“ASA”)
Where: UK
When: 26 October 2016
Law stated as at: 15 November 2016
What happened:
Anyone who has frequented the popular food chain, Leon, may be familiar with their “Original Superfood Salad”, a staple on their menu since mid-2004. Containing, amongst other things, broccoli, peas, cucumber, avocado, quinoa and toasted seeds, the salad boasts a number of ingredients that are generally considered to pack a powerful health punch. However, the ASA has now adjudicated that Leon’s use of the name “Original Superfood Salad”, constitutes an unauthorised health claim under the EU law.
EU laws on food health claims
EU Regulation 1924/2006 on food nutrition and health claims (the “Regulation”) states that only health claims which appear on the EU register of authorised nutrition and health claims can be made on or in relation to food. If a general, rather than a specific, health claim is made, it must be accompanied by an authorised health claim. With regards to the marketing of such products, the CAP Code mirrors this approach, stating that health claims (being those which state, suggest or imply a relationship between a food/drink/ingredient and health and wellbeing) can only be acceptable if accompanied by a specific authorised health claim.
It is worth noting that the Regulation contains an exception whereby products bearing trade marks or brand names which existed before 1 January 2005 can continue to be marketed until 19 January 2022, even if the trade mark or brand name does not comply with the Regulations, without the need for the general health claim to be accompanied by an authorised health claim.
A “superfood” salad with a health claim dressing
In Leon’s case, the ASA decided that the term “superfood” is a health claim, as consumers are likely to understand it to mean that the related product or ingredients are beneficial to health. Leon accepted this, acknowledging that the name “Original Superfood Salad” was a general health claim. However, Leon argued that it could benefit from the Regulation’s exception to the requirement to accompany this name with an authorised health claim, as “Original Superfood Salad” was a brand name which had been used exclusively in the context of their range of salads since 2004.
While this argument may seem compelling on the face of it, the ASA did not agree. It concluded that, the exception for pre-2005 trade marks or brand names would only apply to (a) trade marks registered before 1 January 2005 or (b) unregistered trade marks or brand names which would have been afforded protection against passing off as at this date. While Leon provided the ASA with plenty of evidence that the superfood salad name had been used since mid-late 2004 (such as menus, newspaper reviews and photos of the first Leon restaurant with the salad advertised), the restaurant company did not have a registered trade mark for it at the time. The ASA therefore had to assess whether Leon had built up enough goodwill in the “Original Superfood Salad” name to have given Leon a meaningful passing off right as at 1 January 2005. Its conclusion was that Leon had not; no evidence was adduced by Leon relating to the sales of the dish between its launch in mid 2004 and the start of 2005. In any event, the ASA felt that the terms “superfood” and “superfood salad” were descriptive, rather than distinctive enough to have caused the purchasing public associate these terms specifically with the Leon salad.
As such, the ASA decided that the pre-2005 trade mark and brand name exception did not apply to Leon, and that the use of the name “Original Superfood Salad” without further accompaniment by an authorised health claim was in breach of the Regulations. As such, the description of the salad in all advertising forms was also held to be in contravention of the CAP Code.
Why this matters:
This adjudication is a reminder that brands involved with foods need to be cautious when using anything which could be deemed a health or nutrition claim. Any specific health claims to be used on food or in marketing must appear on the list of authorised health claims as set out in the EU register. Any general health claims (such as “good for you” or “healthy”) can only be used if accompanied by an authorised claim in the EU register, unless they constitute a valid trade mark or recognisable brand name which had sufficient goodwill as at 1 January 2005.
Since the ASA adjudication, Leon appears to have changed the name of the salad to the “Original Super Salad”. However, they have announced that they are hoping to appeal the decision, so perhaps this is a temporary measure. Watch this space as to whether the appeal is successful.
