Book Review: The New Intellectual Property of Health

If reading is good for your health, then surely reading about the IP of health is even better. Enter Alberto Alemanno and Enrico Bonadio's edited volume, "The New Intellectual Property of Health: Beyond Plain Packaging."  Indeed this book covers the classic tobacco plain packaging debate and ventures beyond to consider IP in pharmaceuticals and the more ambiguous sectors of nutrition and health.

The book is collection of essays by legal experts presented in three parts. The first part examines legal and policy issues, the second looks at adjudicating the 'new' IP of health and the third looks at reinventing the IP of health. The editors frame the book as examining the, "rapidly growing category of regulatory measures" affecting foodstuffs, drugs and pharmaceuticals, with the aim of examining the balance of public health interests and IP. It covers various aspects of EU, WTO  and Australian law, with one chapter looking specifically at the Sri Lankan case of tobacco.

Ever a sucker for a snake oil story, my eyes were immediately drawn to a chapter on, "the interface between nutrition and health claims and EU trademark law" by Igancio Carreno and Eugenia Constanza Laurenza. [Merpel, who is very hot on trendy nutrition, nearly spilled her turmeric latte at this point.] As the authors point out, the interaction between EU trademark law and the European Union's need to regulate health claims, through the EU Nutrition and Health Claims Regulation (NHCR), creates interesting tensions. Given the sometimes emotional motivations of consumers of such goods, branding and packaging is particularly important towards conveying claims to (manipulating?) the consumer. The chapter examines the various interactions between NHCR, food laws and IP, and points to key cases. Interestingly, the authors report that "not a single specific probiotic claim has received a favourable opinion from the European Food Safety Authority (EFSA)," or otherwise, with the exception of some specific disease and benefits to children. This is despite fairly extensive scientific research suggesting that probiotics have health benefits. The chapter includes other examples, such as an analysis of the possibility that "Slim Fast," which this Kat remembers being popular in the US in the 90's, may be at risk as it implies a certain, unsubstantiated speed of weight loss.

Turmeric almond macadamia tea
by T.Tseng

In a chapter focusing on patents, Enrico Bonadio asks whether patents can be used to encourage the production of healthier food. Focusing on obesity and related illnesses as a major health issue, Bonadio proposes a series of amendments to patent regimes. He makes three key proposals:
1. Fast-track procedures for patent applications related to healthy food
2. Exempt healthy food and beverage patent applications from paying fees
3. Exclude unhealthy food from patentability
While the economist in me questions the unintended consequences of these incentives and their efficacy (the impact of a similar regime for green patents appears limited), Bonadio provides justifications and an analysis of counter-arguments. He argues that these proposals represent differentiation and not discrimination, and a number of other legal points.

The book will appeal to those interested in plain packaging and the interaction of IP & health. The new intellectual property of health: Beyond plain packaging. Edited by  Alemanno, A., & Bonadio, E. (2016).  Cheltenham, UK, ISBN: 9781784718787,  is available from Edward Elgar Publishing here for £81 in hardback. Rupture Factor: Low, a back-friendly 384 pages.