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FT-Jul16 21 THE SWEET TRUTH UNRAVELLED Barred by the Ministry from exporting MANUKA PHARM and MANUKA DOCTOR products to certain markets in October, Honey NZ took its case to the High Court where it challenged MPI’s ban on the basis that the MANUKA Marks were not health claims (or therapeutic claims) as defined in Standard 1.2.7 of the Australia New Zealand Food Standards Code. The High Court, however, backed the Ministry’s argument that use of the MANUKA Marks implied that, in an unspecified way, manuka honey had properties that would be “good for your health.” Food industry marketers subsequently questioned where the bar would stop around health claims implied in a brand name or statement - which was traditionally considered marketing puffery - and how the decision could be reconciled with other food brands containing the words DOCTOR or PHARM. In February this year, Honey NZ challenged the decision over the MANUKA DOCTOR mark in the Court of Appeal, which supported the company, confirming that any permissible health claim set out in the Code would always require an identified health effect, and that certain categories of claims didn’t fall within the scope of the Code. The Court compared MANUKA DOCTOR with the phrase ‘farm fresh’ - both statements implying the product would be good for you - and noted that the possibility of consumers being misled by such claims would be adequately regulated by the Fair Trading Act 1986. The Court also said the argument that consumers would associate ‘DOCTOR’ with health, healing and medicine was weak. While manuka honey was more expensive than ordinary honey and was generally recognised to have some health benefits, the Court believed it was unlikely that “a substantial number of relevant consumers exercising reasonable care would make that association,“ and cited other ‘DOCTOR’ marks where this was the case, such as DR PEPPER, DOCTOR CRACKER and RUG DOCTOR. Consumers in this case were also more likely to feel ‘MANUKA DOCTOR’ related to producer’s expertise, and the assurance of the purity and quality of the honey. This decision tells us the Code clearly targets claims of specific, measurable health effects. But where a mark or statement tries to imply a health claim not covered under Standard 1.2.7, this is likely to attract the Ministry’s attention, while any misleading statements about health benefits will be captured by the Fair Trading Act. Whether or not the mark is registered as a trade mark won’t affect its interpretation under the Code. There is still scope to use creative licence when incorporating health claims into trade marks and slogans, however given this can often be a grey area it is advised to seek specialist advice. By Stephanie Melbourne Stephanie Melbourne is a solicitor for James & Wells. The honey industry and trade mark practitioners watched closely the battle last year between the Ministry of Primary Industries (MPI) and Honey New Zealand (International) Ltd over whether Honey NZ’s registered trade marks MANUKA PHARM and MANUKA DOCTOR amounted to unlawful health claims. M Y S AY

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