1 November 2016

Not so super “Superfood”

They do say that adversity is the mother of all invention, and the creative ingenuity of Leon Restaurants Limited and their advisers seeking to avoid a negative ruling before the Advertising Standards Authority (“ASA”) provides ample proof that this saying is alive and well.

Food glorious food

For those of you who have frequented the various branches of Leon Restaurants since their inception may well have browsed the salad section on the menu and noticed there was a dish described as “Original Superfood Salad” (well, I assume some of you will look at it even if passing swiftly on to the burgers). 

It begs the question: “what are superfoods?”.  In an article by Christopher Wanjek (May 11, 2015 in Live Science) superfoods have been described as foods “thought to be nutritionally dense and thus good for one’s health”.  However, as the article points out, there is no set criteria for determining what is and what is not a superfood according to the American Heart Association.  In a lovely quote from a registered dietician (Ms Despina Hyde); “As a dietician I think “Superfood” is more of a marketing term for foods that have health benefits”:  Quite so, Despina.  The examples the article gives as “superfoods” are blueberries, salmon, kale and acai (which I have just learned is a berry from a palm tree, with alleged anti-aging properties).  I have no idea what is in Leon Restaurants’  “Original Superfood Salad” but I doubt it was many of those examples.  What, then, is to be made of their use of the term “Superfood”?

“Waiter, there’s a fly in my Superfood”

Someone, for some reason, decided to complain to the ASA about the use of Leon Restaurant’s use of the term “Original Superfood Salad”.  Whatever their reason for doing so, it was pointed out that as a food it was subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods, and as such, was covered by the CAP Code for advertising.  In particular, Rule 15.2 refers to the fact that stating the general benefits of a nutrient or food for overall good health or health-related well-being would only be acceptable if accompanied by a specific authorised health claim.  Clearly, on the menu on Leon Restaurants’ website (and presumably the restaurant as well) there was no such authorised claim.

Leon Restaurants acknowledged that “Superfoods” was making a general health claim.  However, as they had been using the term since 2004,  as a brand name their use was exempted by reason Article 28 (2) of the Regulation. That provision states that “products bearing trade marks or brand names existing before 1 January 2005 which do not comply with [the] Regulation may continue to be marketed until 19 January 2022 after which time the provisions of [the] Regulation shall apply”.

Most of you would be forgiven for thinking that was “taking the biscuit” somewhat – desperate times require desperate measures and frankly, this was as desperate as they come.    To be a “brand name” or a trade mark, the term has to function as an indicator of source or origin of the goods. 

Nevertheless, Leon Restaurants, to prove the trade mark point, provided sample menus from 2004, a food review in The Times of 2004, a photograph in an article (albeit published in 2005) from 2004 that showed the menu in the background with four dishes under the heading “Superfood Salads” including “Original Leon Superfood Salad”, amongst other things.

Not so Kings of Leon

In their assessment, the ASA considered “Superfoods” would be understood (although they do not say by whom) as relating to the general benefits of the product or its ingredients for overall good health or health-related well-being.  As such, “Original Superfood Salad” was a general health claim.  Accordingly, a trade mark making such a claim must be accompanied by a permitted nutrition or authorised health claim in the advertising (in accordance with Article 1(3) of the Regulation).  The exemption in Article 28(2) would only apply if the trade mark fell within Article 1(3).

The most obvious evidence would be to have a registered trade mark, but Leon Restaurants did not have one and so the approach taken by the ASA was to ask whether the mark “Original Superfood Salad” would have been protected by the common law action of passing off.  Unfortunately, in this author’s eyes, that was completely the wrong test.  A passing off action enables a trader to protect not just trade marks or brand names, but also certain terms or descriptions.  In the classic case of Reddaway v Banham in 1896, the House of Lords upheld that the term “camel hair belting” had acquired a secondary meaning and so was protectable by way of a passing off action. 

The Regulation refers to marks, which must function as indicators of source or origin of  goods, not simply be descriptive terms.  The approach the ASA ought to have taken is whether,  as at 1 January 2005, Leon Restaurants could have achieved a trade mark registration.  By following this approach, the ASA would have been more in line with the approach of trade mark registries around the world, and considered whether this mark was capable of distinguishing one undertakings goods from those of another, whether it was devoid of distinctive character, a descriptive term or even common within the trade.  To the extent it was devoid of distinctive character, descriptive or common within the trade, it would have been for Leon Restaurants to provide supporting evidence to show that the use of made of it has enabled the term to acquire that distinctiveness.

Moreover, the ASA’s reasoning suggests they did not grasp the requirements for a passing off action, and what “goodwill” and “reputation” mean.  In passing off actions, “goodwill” is the attractive force which brings in custom, in other words, customers who purchase the goods under or by reference to the term.  The key in this case would have been “reputation” which is whether the general public consider the term has achieved a secondary meaning, the use by another trader of which would be misleading and cause deception and confusion (leading to damage).

Despite this, the ASA concluded “superfood” would not be protected, and so considered descriptive.  The ASA regarded the use in the menu as not falling under the Article 28(2) exemption, and so Leon Restaurants had breached the CAP Code.  They were told not to make the claim again unless accompanied by a permitted health or nutrition claim.

It’s blowing a kale in here

It is unfortunate that the ASA have taken the wrong path in deciding this case, albeit that (in this author’s mind) they have achieved the right result (perhaps the most important thing).  The field of EU Food Regulation is vast and a complex minefield (I know, we deal with it!) and the Regulations relating to nutrition and health claims are strictly enforced (in the UK by Trading Standards).  What is perhaps surprising in this case is that it has taken so long for someone to complain about the use by Leon Restaurants if it was so obvious (over 11 years). 

In this politically correct, highly regulated world of nutrition and health claims, what was once (as Ms Hyde described it) marketing speak (or “puffery” as it was once known), has now been moved to the “harmful” in-box of Trading Standards.  It is another example of the State (or in this case Brussels) protecting me from being deluded into thinking that by choosing Leon Restaurant’s “Original Superfood Salad” I am benefiting myself and my health!  At best, the term may persuade those who were going to choose a salad to choose the “Superfood Salad” but I highly doubt it would persuade the person about to order the chicken and chorizo club with fries into changing their minds.

Incidentally, the online menu is still showing “Superfood Salads” with the chargrilled chicken and chorizo club being served on “our Superfood Salad base”.  So I guess the ASA really taught Leon Restaurants a lesson!