Ad description
A website for Pukka Herbs, www.pukkaherbs.com, a tea and food supplement seller, was seen on 4 May 2017 and stated "Detox ... detox tea".
Issue
Two complainants challenged whether the claim "detox", which was subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods (the Regulation), as reflected in the CAP Code, breached the Code.
Response
Pukka Herbs Ltd said they had been selling Detox tea since 2004, as shown by their trade catalogue and Soil Association organic certificate. They said from 2004 they had sold Pukka Detox tea via a variety of different outlets from small shops to big retailers including Tesco. They said, as a result of selling and marketing Pukka Detox tea prior to 2005, relevant authorities including Trading Standards accepted their right to sell the product under that name until 2022 as per Article (2) of the transitional measures in the Regulation, which provided that, “Products bearing trade marks or brand names existing before 1 January 2005 which do not comply with this Regulation may continue to be marketed until 19 January 2022 after which time the provisions of this Regulation shall apply”.
Pukka said the UK Department of Health “Nutritional and Health claims guidance” stated, “If the trade mark or brand name of a product or range of products implies a nutrition or health claim, for example ‘healthy choiceTM’, then it will also be controlled by the Regulation (see Section 2.6 of this guidance). These trademarks or brand names do not have to be in the EU Register of permitted nutrition or health claims but they must be accompanied by a prominent, related, authorised and listed claim; the claim must be relevant to the trade mark or brand name. However, trademarks or brand names that existed before 1 January 2005 do not have to comply with this requirement until January 2022”. They said their local Trading Standards had confirmed they could keep the name until the transitional period expired.
Pukka said the purpose of the transitional period was to give time to companies who legally marketed their products before 2005 to keep the names which were constructed as health claims without further accompanying claims until the deadline of 2022. The Regulation changed the health claims regulatory environment completely, and the transitional period was deemed necessary for companies who had used and invested in their brand names before the new legislation was adopted. A judgment of the European Court of Justice in 2013 (Green Swan Pharmaceuticals) confirmed that the transitional period applied to trade marks protected by national law even if they were not formally registered as trade marks. They believed the Detox tea name did not need to be accompanied by a relevant authorised health claim until 2022.
Pukka said the word “detox” was a descriptive term and it was not possible to register it as a word-only trademark. They said even their current registration of “Pukka Detox” did not give them the right to prevent a third party from using the word Detox to describe its product qualities. In 2003/4, when the product was launched, it was not possible for them to register the name as a trade mark for several reasons: financial, because they were a small business at the time; trademark, because it was not possible to register it as such; and legislative, because it was not necessary to gather evidence and protect the name under transitional measures because the Regulation was not in force.
Pukka provided various documents relating to the handling of Detox tea in 2003 and 2004.
Assessment
Upheld
The Regulation stated that only health claims listed as authorised on the EU Register of health claims made on foods were permitted in marketing communications. The Regulation and CAP Code defined health claims as those that stated, suggested or implied a relationship between a food and drink or ingredient and health. References to general benefits of a nutrient or food for overall good health or health-related well-being were acceptable only if accompanied by a specific authorised health claim.
The ASA considered the reference to “detox” was likely to be understood as relating to the general benefits of the product or its ingredients for overall good health or health-related well-being. As such, we considered the claim “detox” was a general health claim.
Article 1(3) of the Regulation required that a trade mark or brand name appearing in the advertising of a food which may be construed as a nutrition or health claim may be used, provided that it was accompanied by a permitted nutrition or authorised health claim in that advertising. Article 28(2) provided for an exemption from that requirement until 19 January 2022, for products bearing trademarks or brand names existing before 1 January 2005. We noted that neither “Detox” nor “Pukka Detox” had been registered as a trade mark before 1 January 2005, and therefore were not covered by that exemption on that basis.
In the absence of a pre-2005 registered trade mark, advertisers could nevertheless still fall within the transitional exemption if they established that the relevant trade mark or brand name, in this case “Detox”, would have been protected by the common law action of passing off in the UK prior to 1 January 2005. To justify such protection, they would need to provide evidence to show that the trade mark or brand name in question was used in the UK before 1 January 2005 on (or in relation to) the product in question such as to establish, on the balance of probabilities, that a goodwill existed at that date in the mind of the purchasing public by association with the trade mark or brand name in question.
We acknowledged evidence showed that Pukka had used the name 'Detox' in 2004, including: trading schedules and a trade catalogue; product specification forms and order forms; a stock valuation file; flyers; a poster; and an archived page of a website showing the product for sale.
Notwithstanding the fact that the name had been in use since 2004, we considered that the evidence we had seen was not sufficient to establish the requisite goodwill. For example, we had not seen any evidence which detailed the level of trade experienced by Pukka, with particular reference to sales up to 31 December 2004. In any event, "detox" was a descriptive term rather than a distinctive word, that was how it appeared primarily to have been used by Pukka prior to 2005, and in our view it was unlikely that the advertiser would have established sufficient goodwill and recognition in it to give rise to a meaningful passing-off right. We concluded that what we had seen was insufficient to establish goodwill in the mind of the purchasing public by association with the trade mark or brand name “Detox” before 1 January 2005.
Consequently, we considered the ad was not covered by the exemption under Article 28(2) of the Regulation and as such, “Detox” was required to be accompanied by a permitted health or nutrition claim. Because it was not, we concluded that the claim breached the Code.
The ad breached CAP Code (Edition 12) rule 15.2 15.2 References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim. (Food, food supplements and associated health and nutrition claims).
Action
The claim must not appear again in its current form. We told Pukka Herbs Ltd not to make references to general benefits of food for overall good health or health-related well-being in brand names unless those claims were accompanied by a permitted health or nutrition claim.
