The Canadian Food Inspection Agency (CFIA) would like to remind industry that the use of trade-marks in labelling and advertising of food sold in Canada must comply with applicable federal food legislation, including the Food and Drugs Act (FDA) and the Consumer Packaging and Labelling Act (CPLA).
A trade-mark is a word (or words), a design, or a combination of these, to identify the goods or services of one person or organization.
A trade-mark could include any registered brand name, trade name, logo, slogan, third party proprietary mark, etc. used in branding and advertising a product, as described in the Trade-Marks Act.
The CFIA works to protect consumers against product misrepresentation and fraud by enforcing sections of the FDA and the CPLA.
Subsection 5.(1) of the FDA and Section 7 of the CPLA prohibits the labelling, packaging, treating, processing, selling or advertising of any food in a manner that is false, misleading or deceptive to consumers or is likely to create an erroneous impression regarding the product.
When assessing compliance, all aspects of the food’s label and advertising, including trade-marks, are considered in the overall impression attributed to the food.
Trade-marks on a food product may result in claims related to things such as:
- the character, quality, quantity or composition of the food,
- the method of production of the food,
- the geographical origin of the food, or
- the relationship between consumption of the food or an ingredient in the food and health.
These claims, express or implied, must not be applied in a manner that is false, misleading, or likely to create an erroneous impression with consumers.
For example, depending on the product, the word “fresh” in a product’s brand name might be determined to be misleading to consumers if it implies that food itself is fresh when it is not. Generally, the word “fresh” implies that food is not canned, cured, dehydrated, frozen or otherwise processed or preserved.
The registration of a trade-mark, corporate name or a label does not prevent the CFIA from enforcing subsection 5.(1) of the FDA and 7.(1) of the CPLA when the trade-mark violates these provisions.
In some cases, the use of a trade-mark to make a claim may cause the product to lose an exemption if one existed. For example, products exempt from displaying a Nutrition Facts table as described in the Food and Drug Regulations lose the exemption if the label or advertisement carries a trade-mark that is related to any health properties of the food.
Trade-marks used to make a claim may also trigger additional labelling requirements. For example, products that use a trade-mark to make a nutrient content claim, such as including the word “omega-3” in a brand name, must meet these additional requirements for these claims.
Additionally, care should be taken when applying a trade-mark in conjunction with a health claim because pre-market assessment by Health Canada could be required if the label or advertisement creates an impression that the product could be used in:
- the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or its symptoms, in human beings; and/or
- restoring, correcting or modifying organic functions in human beings.
For example, a product that includes the trademark “heart healthy” may create an untrue impression regarding the merit or value of the food, if the food does not meet specific criteria related to heart disease claims.
Guidance on the use of trade-marks is available on the CFIA website and more specifically in section 4.2.1.(b) of the Guide to Food Labelling and Advertising.
For further information on food labelling, you may contact your local CFIA office, call 1-800-O-Canada or refer to the CFIA website.
