A menu item listed on www.leonrestaurants.co.uk, seen on 10 March 2016, stated "Original Superfood Salad".
The complainant challenged the claim "Original Superfood Salad", 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.
Leon Restaurants Ltd said they were aware that the term ‘superfoods’ was a general health claim. However, they said that their use of it had been exclusively in the context of a brand name for a range of salads which they had sold since 2004. They said further that Article 28(2) of the Regulation stated specifically "Products bearing trademarks 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”.
Leon Restaurants explained that while the Regulation required general health claims to be accompanied by specific authorised health claims, it did not apply in this case because they had used the term in the context of a brand name which existed before 1 January 2005. In that regard, they believed that their use of ‘superfoods’ satisfied the exemption stated in Article 28(2) and therefore, the term ‘superfoods’ did not have to be accompanied by a specific health claim when appearing in their advertising. To demonstrate that, Leon Restaurants provided: a copy of their Summer 2004 menu which showed a dish named "Superfoods Salad”; a food review of Leon Restaurants in The Times magazine dated 14 August 2004; an article published on 13 February 2005 which included a photograph taken in 2004 that showed a menu in the background with four dishes under the heading “Superfood Salads”, which included “Original Leon Superfood Salad”; and a number of photographs taken at the official opening of its first restaurant on Great Marlborough Street, London on 21 September 2004, which featured the Leon menu in the background, the text of which, however, was illegible.
The Regulation stated that only health claims listed as authorised on the EU Register of nutrition and health claims made on foods were permitted in marketing communications. The 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 “superfoods” 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 “Original Superfoods Salad” 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 Leon Restaurants believed “Original Superfood Salad” was a brand name which fell under Article 1(3) of the Regulation and the associated exemption under Article 28(2).
However, in the absence of a pre-2005 registered trade mark, we considered that advertisers must provide evidence which established that the relevant trade mark or brand name, in this case “Original Superfood Salad”, would have been protected by the common law action of passing off in the UK prior to 1 January 2005. To justify such protection, the evidence provided must 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 Leon Restaurants’ evidence showed that they had used variants of the name ‘Superfoods Salad’ since summer 2004. In their Summer 2004 menu and the Times magazine article, its name was “Superfoods Salad”, whereas in the menu shown in the Observer article, it was called “Original Leon Superfood Salad”. Finally, we noted that the dish was currently called “Original Superfood Salad”. Across the evidence, we noted that the ingredients also varied.
We considered that both the Leon Summer 2004 menu and the Times magazine food review demonstrated that a version of the dish “Superfoods Salad” had been available since August 2004. Similarly, we considered that, while the menu in the background was illegible, the photographs of the official opening of the first restaurant on 21 September 2004 showed Leon Restaurants had been trading as a restaurant since that time. We understood that while the Observer food article was published in 2005, the picture (which featured a version of the dish as “Original Leon Superfood Salad) was taken in 2004, and again, we considered that demonstrated that a version of the dish had been available prior to 1 January 2005.
Notwithstanding the fact that variants of 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 supplementary evidence which detailed the level of trade experienced by Leon Restaurants, with particular reference to sales of the dish between August and 31 December 2004. In any event, “superfoods” and “superfoods salad” were descriptive rather than distinctive words such as to make it unlikely that the advertiser would have established sufficient goodwill and recognition in them 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 “Original Superfood Salad” 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, “Original Superfood Salad” 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 or nutrition claims).
The claim must not appear again in its current form. We told Leon Restaurants 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.