Food companies seeking to display certification logos or other trademarked content on their packaging need to ensure they are meeting all of the legal requirements to do so, said Jeni Lamb Rogers, associate general counsel at Branded, during an SFA webinar, Tuesday.
“Every certification program has some obligations,” she said during the webinar, titled “Using Third Party Certifications and Logos on Food Labels.”
Common certifications that specialty food makers might use to help drive sales and market their products include Non-GMO Project Verified, Whole30 Approved, Certified Gluten Free, Certified Vegan, Keto Certified, and Fair Trade.
The organizations that grant these certifications and others tend to have detailed guidelines on their websites for companies seeking to incorporate them into their labeling, packaging, or marketing materials. The certification process could include submitting ingredients to the certification organization, having facilities audited, securing third-party testing, and other requirements.
Some certifications, such as kosher designations in New York, also require registration with state authorities.
In addition, most certifications require an initial fee, and ongoing renewal fees may also be required.
Certification programs generally include the terms and guidelines for certification, as well as a licensing agreement. Manufacturers should review these agreements with an attorney to ensure that they understand all of the requirements, Rogers said.
Any changes in a manufacturer’s operations—such as switching out ingredients or procuring ingredients from new suppliers, for example—could require the manufacturer to go through some of the certification process again. A change in ownership or control of the manufacturer could also trigger the need for recertification, Rogers said.
One mistake many small companies make is to download a certification logo from a website and start using it without permission. Even though an image of a logo may be free for “educational purposes” or other uses, displaying it to promote a product likely violates the certifying organization’s trademark rights, she said.
“What I always tell clients is that free isn’t necessarily free,” said Rogers, citing the high costs involved in reprinting labels or packaging. “You are always bound, once you use these on your product, by a terms-of-use or a licensing agreement.”
Certification could also require two separate agreements—one for packaging and one for online advertising, she said.
An alternative to certification is to make similar claims, such as “keto-friendly” or “paleo-friendly” without gaining an official certification. These types of claims should be explained on a company’s website, she said, so that consumers can easily determine how the company is defining the terms and how its products meet those criteria.
Other fact-based claims, such as organic, need to be substantiated, Rogers said.
Another labeling issue that manufacturers sometimes encounter concerns claims surrounding the use of patented ingredients. Rogers cited GanedenBC30 probiotics as an example, noting that Ganeden has very specific guidelines about how their product must be used in other products if it is indicated as an ingredient.
“If you violate their terms, you are likely to receive a cease-and-desist order,” said Rogers.
Similarly, manufacturers that use sugar substitutes such as Lakato, Truvia, or Splenda need to ensure they meet the guidelines set by those companies if they are claimed as ingredients. The same goes for the use of other branded food ingredients such as gourmet chocolate or Oreo cookies, for example.
“You can’t piggyback off of somebody else’s goodwill that they have built to sell your product without considerable risk,” said Rogers.
If a manufacturer gets permission to use the brand name or logo of an ingredient, or if the two companies execute a co-branding agreement, the license holder may require pre-approval of labeling or packaging that displays the ingredient, she said.
When a manufacturer is caught using a brand to promote their product without permission, sometimes the manufacturer will be allowed to sell through any product that has already been distributed, but they might also be forced to pull the product from store shelves.
“Ultimately, these are mistakes that can cost significant amounts of money,” Rogers said.
Listen to the webinar recording on demand here.
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