An article by two lawyers at Reed Smith, Drew Amoroso and David S. Reidy, entitled “Is ‘Paleo’ The Next Battleground In Food Litigation?”, reminded me of this prior article, the one I wanted to call “Don’t Make Artisan the New Natural”.   Their article is behind a pay wall, but it’s worthwhile reading if you can access it.

Amoroso and Reidy make a number of cogent points about purveyors of food with a “Paleo” label:

  • “The differing definitions of Paleo may lead consumers who purchase foods labeled as Paleo to believe they are buying a product that meets certain nutritional specifications, when, in fact, it does not”
  • “Companies that advertise the health benefits of Paleo foods must ensure their claims are not misleading to consumers and any claims they make are backed by appropriate scientific support”
  • “Because of the lack of regulatory guidance and varying definitions of the term Paleo, Paleo food producers are left to guess as to whether their claims could be construed as misleading”

My interest is not in whether a Paleo diet is good for you (I’m a lawyer, not a nutritionist), but, similarly to Amoroso and Reidy, in what people in the food industry can do to ensure that the endless litigation that has accompanied “natural” food labels can be avoided.  They mentioned one organization, called the Paleo Foundation, that has begun to make certifications entitled “Paleo Friendly,” “Certified Paleo” and “Paleo Approved” (the last of these is for farms and ranches, rather than retailers).  This set me to thinking about the differences between these certification labels and the VPN labeling discussed in my previous article.

By now, the term “Paleo” without more is a likely weak mark.  Dr. Loren Cordain, author of the bestselling “The Paleo Diet” and subsequent books, has a trademark for the “The Paleo Diet”, but as he himself explains,

I currently own the trademark to the term, “The Paleo Diet” for educational materials only. Over the years many kindle books have appeared on Amazon which use my trademarked term. I have looked into a number of these, and from an academic and scientific perspective, the message most of them deliver is inaccurate and in some cases go so far as to plagiarize my copyrighted work. To me, these kinds of actions are unfair and unjust to the author who wrote the original materials. Hence, when books using the words “The Paleo Diet” appear on Amazon either as hard copy or otherwise, I ask the authors to either remove the book or change the title and to please give me a chance to read the book so I can determine whether or not I would endorse it.

But with regard to the term “Paleo”, without more, he says, “I agree with everyone that ‘Paleo’ has become a worldwide movement/phenomenon that is not owned by anyone, nor should it ever be.”   There are many trademarks for Paleo, including a trademark for Paleo in connection with hats and t-shirts and the like, and the validity of that mark is untested.  There’s a mark for Paleo Certified, which is probably why the Paleo Foundation went with “Certified Paleo” instead.

Which brings us back to the Paleo Foundation and the differences between its certifications and those of VPN for Neapolitan Pizza.  The VPN certification includes a colorful and imaginative logo.  At least in the United States, the phrase “Vera Pizza Napoletana” is evocative and not just descriptive.  When you combine it with a cartoon soldier carrying a pizza peel, you have a relatively strong trademark.  When you combine that with significant training and policing of the people who are authorized to use the mark (I have no information on what they are in fact doing, but the training course is a minimum of 60 hours, at a cost of €1500, plus transportation to Naples; that sounds pretty serious), you have something that is substantial and likely to be afforded legal protection for its unauthorized use.

For Certified Paleo, there appears to be a two-step process, one of which is a self-certification that one’s products meet the standard laid out here and the other appears to be a review and at least the potential for audit and even site visits for the certification.  How much audit is involved and how much policing really occurs might make a huge difference to potential liability issues.

But the real danger area, as Amoroso and Reidy point out, is not in calling yourself Paleo, but in what addtional claims you make.  When you’re talking about Neapolitan pizza, you’re talking about taste, and taste, of course, is different for every person.  When you’re talking about a diet, the risk of making undemonstrable claims is significant.

There is a safer route.  If you’re certified by the Paleo Institute, that’s all you have to say.  If, as the Paleo Institute suggests, people in the emerging Paleo community are all sold on the ideas of what is behind the institute’s certification, you, as a food purveyor who obtains their certification, need say nothing more.  Essentially what you’re saying is, I know there are true believers in this diet, and I am making an honest product that complies with one organization’s standards for that diet; if that’s what you’re after, that’s what I’m selling.  That should insulate you from liability on two fronts:  from those who claim the diet doesn’t do what it’s intended to do and from those who claim your version of the diet isn’t the “true” version.  The risk, of course, is by not making your own claims about the benefits of the diet, you may not generate sufficient business to make a profit.  That’s a cost-benefit analysis everyone in business has to make.