Manuka honey has seen great success both domestically in New Zealand and as an export product. With this success, topical legal issues have arisen.

Honey New Zealand (International) Ltd & Manuka Doctor Ltd v Director General Of The Ministry For Primary Industries [2016] NZCA 141

The Manuka honey industry has been facing growing scrutiny over the legitimacy of its products along with the claims being made on the honey's packaging/labelling. A recent case tested whether the use of the trade marks "MANUKA DOCTOR" and "MANUKA PHARM" was a health or therapeutic claim and therefore limited by the New Zealand (Australia New Zealand Food Standards Code) Food Standards 2002 (the "Code").

Broadly, a health claim can only be made if the product meets nutrient profiling scoring criteria and the conditions of an applicable pre-approved health claim are fulfilled or the requirements of a self-substantiated health claim are satisfied. "Therapeutic" claims are prohibited. They include claims that refer to the prevention, diagnosis, cure or alleviation of a disease, disorder or condition.

Honey New Zealand (International) Limited ("Honey NZ") sought a declaratory ruling from the High Court that the use of the trade marks, "MANUKA DOCTOR" and "MANUKA PHARM", were not in breach of the Code. In the first instance, the High Court held that the use of the "MANUKA DOCTOR" and "MANUKA PHARM" trade marks constituted an implied health claim that the products on which the marks were used had properties which would be "good for your health". The decision of the High Court was then appealed in connection with the use of the "MANUKA DOCTOR" trade mark but not the "MANUKA PHARM" mark.

The Court of Appeal considered that one of the aims of the Code was not to prohibit "general claims of unidentified health benefits" but rather to target "claims of specific measurable health effects". The Court also emphasised that one of the purposes of the Code was to avoid "unnecessary restrictions on trade". Ultimately, the Court of Appeal held that Honey NZ had not made a health claim (and had not breached the Code) on the basis "that consumers exercising reasonable care would have regard to the label as a whole and conclude that the use of the words "MANUKA DOCTOR" relates to the expertise of the producers and the assurance of the purity and quality of the honey through the UMF grading system". The Court used "Rug Doctor" and "Dr Pepper" as examples of products where customers would not consider the use of the word "DOCTOR" on product labelling to constitute a health claim under the Code.

The Court of Appeal also held that use of the "MANUKA DOCTOR" trade mark did not constitute a therapeutic claim under the Code. The Court was of the view that there was no reference in the mark, either express of implied, to any disease, disorder or condition nor did it cause the product to be compared with a product that is represented as being for therapeutic use or is likely to be taken to be for therapeutic use.

The case is a reminder to take care in claims that are made both directly and indirectly on not only honey but all food products. This case considered specific elements under the Code. However, there are broader considerations to take into account when making claims, including the Fair Trading Act 1986 and the Food Act 2014 which prohibit false or misleading statements in relation to food.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.