Nutraceuticals and IP – increasing your product’s longevity

Over recent years, there has been a rise within the food and drink industry in healthy alternatives, as consumers become more conscious of their diet, and more wary of what goes in to their food and drink. Health and longevity are becoming of increasing consumer concern, and associated governmental regulation is also on the increase. But, in a food and drink context, does the term “healthy” always equate to what consumers perceive to be “natural”?  At least a proportion of consumers have a negative association with “chemical” or “unnatural” ingredients being added to their food. Yet, despite this, a variety of successful products have been launched over the years that may broadly be classed as “nutraceuticals”.

Although usage can vary, the term “nutraceutical” generally refers to a food-based or food-derived product that provides an enhanced health benefit compared with its “natural” food counterpart. A nutraceutical may be classed as a dietary supplement, or a “functional food”.

Dietary supplements

The principle of a dietary supplement is to isolate a chemical that is present in food and theorized to be responsible for improving health, and then to formulate this chemical in to a capsule, powder (and so on). For example there is an array of dietary supplements based on lycopene (which is present in tomatoes) marketed as having beneficial antioxidant effects.

Functional foods

Whilst dietary supplements are consumed in a pseudo-medicinal manner, “functional foods” are consumed in their traditional food form. These are products that are altered in their makeup in some way so as to impart an improved health benefit. Functional foods can be readily found on the supermarket shelves, for example:

  • margarines that include stanols or sterols, (e.g. BENECOL® spread) stated to reduce your cholesterol
  • yoghurt or milk drinks with bacterial cultures (often marketed as “friendly bacteria”) stated to be of digestive benefit

The array of functional foods now available is becoming more and more varied. For example, US company Puration are selling water infused with a cannabis extract (minus the psychoactive compound, THC) stated to be an “ideal component of a pre and post workout regime”, and purported to work as an anti-inflammatory and relieve muscle spasms.

Japan boasts a particularly eclectic mix of functional food products, ranging from the well-known fermented milk product Yakult, to a perhaps more unusual product called “Precious” – a collagen-containing beer said to improve your skin.

Meanwhile, university institutions are also innovating in this area, and some are even looking to bring healthy ice-cream to the table – the product in question being gelato with antioxidant properties, developed at the University of Rome. Antioxidant enrichment of food seems particularly on trend for making “unhealthy” products, “healthier”, and consumers can now buy flavanol enriched cocoa, and antioxidant boosted wine.

What do consumers think?

Consumer reaction to these products can be mixed. For some, the potential health and longevity aspect of these products has proved highly popular. Taking the example of Yakult once again, the milk product has shown steady growth and is now available in 33 countries. Yet, to others, these products may be less appealing. Some consumers may object to these products simply on the basis that there has been scientific meddling in their food (perhaps more so when the food ingredients are genetically modified), while others may merely be skeptical as to whether or not these products work.

Fueling this consumer scepticism are stories of companies having to withdraw the health claims of their nutraceutical products, after authorities deemed the evidence supporting these health claims insubstantial. For example, in 2010, Danone withdrew claims that Actimel and Activia boost the immune system and aid digestive health, after doubts were raised by the European Food Safety Authority and the UK Advertising Standards Authority.

It is stories such as this that highlight the importance of regulating the health claims made by companies towards nutraceutical products, to avoid misleading consumers. At present, the standards of regulation vary across the globe. But, as we (the general public) become ever more health conscious, it may be that the health claims of nutraceutical products come under even closer scrutiny. This is not in itself a bad thing, however – stringent regulations and sceptical consumers may well fuel innovation, as companies compete to develop new nutraceutical products with watertight health claims, and quite possibly as a result, very desirable and successful products to market.

What does this mean for IP?

With continuing innovation in this area, it is important to consider your patent position, as well as your broader IP strategy. A new nutraceutical product with improved results over previous products may be eligible for patent protection, and the more data that demonstrates these improved results, the better. If you have developed an improved process of making your product, then this process may also be eligible for protection. A strong patent could lead to increased revenue, thanks to licensing opportunities or simply keeping competitors out of a lucrative market.

Aside from potential health benefits, is your product improved in another sense? E.g. is it more stable in terms of shelf life, less prone to microbiological spoilage, or does it solve an existing technical problem around flavour or consistency? If so, then again patent protection might be an option.

Of course, as well as being mindful of your own IP, it pays to be mindful of your competitors who will also be innovating in this area. You may decide not to patent your product, but you should still check to see if your competitors have done so – and if so, if there is a risk of infringement. Launching a new product without assessing the competitive landscape can have costly implications, e.g. if you are forced to recall products and to reformulate your product as a result of someone else’s IP.

Even if patent protection is not appropriate for your product, don’t forget that there is value in obtaining registered trade mark protection for your brand name. A registered trade mark means you can prevent someone else using or applying to register something identical or similar for an identical or similar product. A registered trade mark, like a patent, is an asset that can add real value to your business either by licensing its use to a third party or by selling it. Again, when launching a new product you should also make sure that you have searched to establish whether your use might infringe an earlier right owned by a third party.

The future

The trend for healthy eating and living looks set only to increase and new products are continually hitting the market. This presents consumers with a dizzying array of choice, but it also means we’re in a time of great opportunity for companies innovating in this space. Investing in innovation does require resources, but this investment can pay off if you arrive at the right product, and protect it with the right IP.

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