Food Law: Clean labelling can be a mess
By Laura GomezRegulation Clean labels Editor pick food law
The trend toward clean labelling with simple terms, symbols and slogans can be a powerful marketing tool. However, these same tools can be minefields from a food law perspective, so proceed with caution. The clean labelling trend encourages the use of plain language, lists of ingredients with shorter, more recognizable, ‘natural’ ingredients, and a focus on “free from” claims, including no artificial additives or preservatives. Promoting health benefits, avoidance of scientific or chemical-sounding ingredients, as well as ethically sourced, environmentally friendly, and non-GMO claims are considered a part of this trend.
To achieve a clean label, symbols and slogans are frequently used to highlight the benefits or unique characteristics of a food. Some of these images, logos or phrases may be protected from an intellectual property perspective by a trademark. However, it is important to note that in most cases, food legislation does not exempt these elements from regulatory compliance. All information presented to consumers, whether in symbols or words, must comply with federal legislation, including the Food and Drugs Act (FDA), Safe Food for Canadians Act (SFCA) and the Competition Act.
Trademarks are often used in food labelling and advertising to convey information regarding a food’s character, quality, value, quantity, composition, merit, safety, origin, method of manufacture or preparation.These claims are subject to the general prohibition on false and misleading labelling and advertising under federal food legislation. Whether such claims are expressed or implied, the law requires them to be presented in a manner that is not false, misleading, or likely to create an erroneous impression on consumers. Given their broad nature, almost all symbols, logos and slogans used in food labelling could be interpreted as falling within the scope of these provisions. Notably, neither FDA nor SFCA exempt trademarks from application of these legal requirements.
Many popular clean label claims also raise concerns under the laws enforced by the Competition Bureau. The Competition Act’s deceptive marketing provisions prohibit the use of any messages, pictures, or verbal communications that are false, misleading, or unsubstantiated. It also prohibits performance claims, includes any form of statement, warranty or guarantee of a product’s performance, efficacy, or length of life that is not based on adequate and proper testing. Again, there is no exemption just because a symbol or slogan is also a trademark.
Part of the difficulty with using symbols and slogans in order to convey information to consumers, is that expressions such as “less is more” and “short and sweet” do not always ring true when it comes to food law. Implementing a clean label approach can be a challenge from a regulatory perspective. In the list of ingredients, companies must disclose virtually everything that is added to a food. In Canada, there is no exemption for food additives even if they are added in tiny quantities. Diverging from the clean label trend, guidance from regulators often encourages the use of additional explanatory statements and disclosures (e.g. highlighted ingredients, made in Canada). It can be difficult to use simple terms. CFIA’s criteria for ‘natural’ excludes many processed ingredients even if they aren’t synthetic, and while the word “artificial” is used in regulation, it is not defined, leaving the term subject to interpretation. Use of trademarks that imply health, comparative nutrient content or environmental claims can trigger mandatory declaration requirements, and symbols on their own can be considered vague or exaggerated if not accompanied by supporting statements.
As technological innovation creates new ways to convey information (e.g. QR codes), expectations from regulators may also be evolving. In 2019, the Competition Bureau archived its guidance on environmental claims in part because the guidance no longer reflects “the latest standards and evolving environmental concerns”. This July, Health Canada acknowledged that simple and visible information is powerful tool to communicate to consumers, using this rationale in support of the new interpretive front-of-package (FOP) nutrition symbol that will be required on most prepackaged foods in Canada. Like any trend, consumers may be drawn to the allure of a clean label, but in a highly regulated food industry it is important to find the right balance between simplicity and compliance.
Laura Gomez is an Ottawa-based Gowling WLG partner who advises on food law and has been recognized in both The Best Lawyers in Canada and the Canadian Legal Lexpert Directory. Contact her at firstname.lastname@example.org or visit https://gowlingwlg.com/en/sectors/food-beverage/global.
This column was originally published in the October 2022 issue of Food in Canada.
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