Transitional rule over: marks with claims must comply with Claims Regulation

Registered brand names with claims may be used after Jan. 19, 2022, only under conditions. Packaging must refer to the specific approved health or nutrition claim. This means that some packaging must be modified to comply with the Claims Regulation.

Trademarks are names registered in the Benelux Office for Intellectual Property Trademark Register and this means that only the trademark owner may use this mark. To maintain trademark protection, a trademark owner must use the mark by, for example, selling a product with the mark. According to Article 1 of the Claims Regulation, trademarks can include health claims. An example of a registered trademark containing a health claim is "Vifit. The mark contains the word 'fit' indicating a health claim.

Rules after Jan. 19, 2022

Article 27 of the Regulation on Claims mentions the transitional regime. It states that products bearing trademarks or brand names that existed before January 1, 2005 and do not comply with the Regulation on Claims could be marketed until January 19, 2022. After Jan. 19, 2022, these products must also comply with the provisions of the Regulation on Claims. This means that the packaging should refer to the specific approved health or nutrition claim. To comply with the Claims Regulation, for example, Vifit products state which vitamins the drinking yogurt contains. In addition, it states that these vitamins help to support the immune system.

Enforcement

Therefore, now that the transitional regulation no longer applies, brands with claims must comply with the Claims Regulation. The Netherlands Food and Consumer Product Safety Authority (NVWA) is in charge of enforcing this. The degree of enforcement by the NVWA varies. The food authority can enforce on a project-by-project basis. For example, in 2014 they conducted an investigation into the correctness of stating claims on breakfast cereals. In addition, the NVWA enforces based on reports or complaints it receives. If the Claims Regulation is not complied with, the NVWA can take enforcement action by issuing a written warning or an administrative fine. In case of a serious violation, an administrative fine follows immediately. It is therefore important to adjust the labels of products where the brand refers to a health claim. Products marketed before Jan. 19, 2022, may still be sold.