Looking back over this GreeKat shoulder… Part II: How “lifestyle paternalism” might threaten brands

In Part I of this series, we took a look at plain packaging, the apparent “avant garde” of a developing lifestyle paternalism powered by regulatory action or, on the opposite side of the fence, of a welcome regulatory limitation upon brand-imposed lifestyles. In the not so distant past, brands have been accused of implicitly or even openly inducing or imposing specific lifestyles, to serve sales targets. Brand marketing which ‘sold’ a beautiful experience has been thought (and in this blogger’s mind sometimes rightly so) to impose particular lifestyles or particular choices.

Rather naturally, this led to counter-action. Gradually, perhaps in the endless chase of consumer engagement, the “green”, “eco”, “healthy” and “back to basics” movements created waves that stormed the brands’ sandy beaches and called for regulatory intervention. For example, New Zealand’s Labour Party reportedly is proposing to “reduce sugar content in all processed food” and to “require labelling on the front of a package” (see here), and the UK House of Commons Health Committee in 2012 launched an inquiry on, among other things, marketing restrictions and plain packaging for alcohol (see here).

In this GreeKat’s mind, health goals and/or the need to protect sensitive population groups calls for consumer protection regulation. But a question interesting to this audience should be how these regulatory interventions affect intellectual property.  Beyond that, this blogger wonders at which point such regulation reaches the point of imposing particular lifestyles or overly restricting individual freedom; or, in other words, where regulatory role becomes paternalism. Discussing with people outside the IP community, this blogger found that most of them were not against strict regulations as such for example for “unhealthy” goods. Still, when discussing the particulars of what is good for consumers – what constitutes a good life – and also who makes that decision and how answers are controversial.  Many view over-reaching state intervention regulating all aspects of people’s lives with scepticism. 

For example, it is hard to find anyone disagreeing that child obesity is a serious problem. In this blogger’s country, child obesity is an epidemic, with almost 50% of boys and girls in second grade weighing above normal. In the UK, celebrity Chef Jamie Oliver’s recent documentary on the health effects of sugar received extensive media coverage and calls for action within the public health community.   Among Oliver’s goals: a 20% tax on soda, restrictions on TV and digital marketing of foods high in fat sugar and salt, and mandatory traffic light labelling on packaging.  (see here).  Authorities in other countries seem to agree with Oliver – Mexico introduced a soda tax in 2014 (see here).

Many industries are the target of these type of regulatory interventions.  This blogger learned that Turkey now requires graphic warnings on alcohol (see here), and IPKat previously hosted a very interesting post on South Africa’s restrictions on the use of trademarks and branding on infant formula (see here).

Clearly, regulations that tackle misleading advertising and promotion, or oblige producers and vendors to provide consumers with accurate information about the products they choose to buy, should be welcome. It is also clear that strong consumer protection and strong brand protection can, and do, coexist.

But this blogger wonders whether expanding consumer protection action may be drawing a distinction between “good” categories of brands and “bad” categories of brands, depending on regulatory perception. This blogger contends that it is one thing for a consumer, or a parent, to know the health risks associated with a particular product or activity, and a different thing to point the finger or scold certain consumer groups and attempt to control what is good and what is not for them and their loved ones via brand restrictions. This blogger feels rather uncomfortable with the latter. An interesting twist is that brand owners have played along and ridden the “green and healthy” wave. Whether in pursuit of a trend, by just “jumping the bandwagon” or in fear of enticing regulators, brand owners promote green and healthy product values. But as they do, the drive for regulations with a de-branding effect is gaining momentum and this may lead to a vicious circle, to the point of threatening the key functions of trade marks as source identifiers and guarantors of unique product characteristics.