Court of Appeal hears NZ Honey's fight with MPI

The stoush between New Zealand Honey International and the Ministry for Primary Industries over labelling has reached the Court of Appeal.

New Zealand Honey is appealing a High Court ruling in November that found its trademarks, Manuka Doctor and Manuka Pharma, amount to health claims and cannot be used on the company's products. That ruling came after the MPI withdrew export approvals, blocking the firm's sales into certain markets.

MPI has been cracking down on the manuka honey industry amid international criticism there is more manuka honey being sold worldwide than New Zealand actually produces, suggesting some product is bogus.

With no industry-wide consensus on what constitutes manuka honey, MPI introduced an interim labelling guideline in July 2014 to give the industry clarity and protect consumers from false claims, as well as to try to improve the credibility of manuka products.

The regulator cancelled NZ Honey's export assurance last May, saying the company's brand names Manuka Doctor and Manuka Pharm breached food labelling standards.

Appearing  in the Court of Appeal in Wellington before a panel of three judges – Justice Anthony Randerson, Justice Helen Winkelmann and Justice Mark Cooper – NZ Honey counsel Andrew Brown QC said the company disputed the High Court's ruling that the trademark Manuka Doctor amounted to a claimed health benefit.

Mr Brown said the general public was "well used to puffery" when it came to non-specific claims on the health benefits of food, and were able to form viewpoints on products without the need for protection.

If there were a health claim, it had to be identifiable, he said. An identified claim had to state, suggest or imply a health effect, it must be possible to identify what that effect was, and the regulation did not cover implied, vague and general claims, such as "it's got to be good for you," he said.

Appearing for MPI, Rachael Schmidt-McCleave said the context of the specific product was important in this case. There were proven benefits from the topical application of manuka honey on wounds, she said, and the public had an understanding of manuka as beneficial to health.

Schmidt-McCleave said the term Manuka Doctor implied a therapeutic claim from a doctor, as it compared the services of a doctor to the benefit from the honey. She said the existing connotations around manuka honey put Manuka Doctor further along the continuum of permissible health labelling. Schmidt-McCleave said the language written into the standard governing labelling on food showed implied health claims were meant to be covered.

Brown said the Manuka Doctor trademark was clarified on the label, with reference to specialists rather than physicians. Schmidt-McCleave said the clarification on Manuka Doctor bottles was in smaller type on the back of the bottle, and the average consumer may not read it. She also said the use of 'doctor' in the trademark, with no other link to the product, implied a health benefit.

All three judges questioned Schmidt-McCleave on her argument as to other food health claims MPI could restrict. She told the court that a food could be described as "good" but not "good for you" if that were not scientifically proven, with MPI viewing generalised claims as "problematic." The apple industry could not use the term "an apple a day keeps the doctor away" under MPI's argument, as that would be a health claim, and the only recognised health claim for apples is improved heart health, she said.

General language, such as branding using a "healthy tick" without evidence would not be allowed using that argument, Ms Schmidt-McCleave said, and a sign in the fruit and vegetable section of a supermarket saying "make a healthy choice" would also be banned as it is not a specific, proven claim.

It would still be possible to reference health benefits from milk under this argument, as milk has recognised health benefits from calcium.

The decision was reserved.

(BusinessDesk)