An issue that comes up particularly for lawyers is whether or not food and the claims about food are real
The Food Safety and Standards Authority of India [FSSAI] shares public concerns about food labelling, and late last year published a set of regulations called the Food Safety and Standards (Advertising and Claims) Regulations, 2018 to govern what claims can be made on packaged food and advertising for food. A draft of the regulations was originally published on 13 March 2018 for comment, and the final version was published on 19 November 2018.
The regulations are in force and all companies engaged in the manufacture and distribution of food were to be compliant before 1 July 2019.
Types of conditions
The regulations are aimed at governing and regulating claims and statements made on product packaging and advertisements, and broadly cover the following:
- Nutrition claims (including nutrient content or nutrient comparative claims);
- Non-addition claims (including non-addition of sugars and sodium salts);
- Health claims (reduction of disease risk);
- Claims related to dietary guidelines or healthy diets;
- Conditional claims;
- Claims that are specifically prohibited.
While the regulations define and list out the types of claims, they have also listed a schedule, which contains the criteria to legitimately make such a claim.
For instance, you can claim that your product is “fat free” if there is less than 0.5g of fat per 100g for solids, or per 100ml for liquids.
The regulations also list the procedures for seeking approval to use a particular claim, and redressal of non-compliance under these regulations (which includes a hefty fine of ₹1 million, or US$14,400).
From a trademark/brand owner perspective, the regulations on conditional claims are interesting.
Regulation 4 (7) states:
Where the meaning of a trademark, brand name or fancy name containing adjectives such as “natural”, “fresh”, “pure”, “original”, “traditional”, “authentic”, “genuine”, “real”, etc., appearing in the labelling, presentation or advertising of a food is such that it is likely to mislead consumers as to the nature of the food, in such cases a disclaimer in not less than 3mm size shall be given at appropriate place on the label stating that: “This is only a brand name or trademark, and does not represent its true nature”.
Regulation 9 (2) states:
Claims containing adjectives such as “natural”, “fresh”, “pure”, “original”, “traditional”, “authentic”, “genuine”, “real”, etc., when used, shall be in accordance with conditions laid down in Schedule V and the claims containing words or phrases like “home-made”, “home cooked”, etc., which may give an erroneous impression to the consumer shall not be used.
So, if your trademark contains a portion or part that includes any of the listed words when they don’t in fact fit the criteria, it is mandatory to have the mentioned disclaimer.
At present, there are about 8,690 trademarks that include the words “natural”, “fresh”, “pure”, “original”, “traditional”, “authentic”, “genuine”, “real”. This does not include trademarks that translate to, or mean any of, the listed words. Clearly “genuine” is the least used on trademarks and “fresh” is the most commonly used as a part of the trademarks filed.
Things to do
If you are a proprietor of one of the 8,690 trademarks that incorporate one of the mentioned words or have marks that translate to or mean similar, you probably ought to do the following:
- Check if you are compliant. Schedule V of the regulations lists the conditions to be met to make a particular claim;
- If you don’t fit the criteria, you need to make an application, along with the fee, seeking approval to use the claim as a part of your packaging/advertisement;
- Disclaim. If you don’t get approval, you will need to use the disclaimer: “This is only a brand name or trade mark and does not represent its true nature”.
The deadline to comply with this exercise was 1 July 2019. The regulations are clearly aimed at protecting the interests of the customers, which is a great initiative, and brand owners need to be careful about picking good trademarks and not misleading the general public. With the introduction of these regulations for food products, judging the proverbial book by its cover may be fine, and all that glitters, and is labelled accordingly, just might be gold.
Navarre Ebenezer Roy is a senior associate in Anand and Anand’s Chennai office.