Obesity and chronic diseases, like diabetes and heart disease, are on the rise.  To solve this crisis, we seem to be searching for the next super food, known as functional food, which will lower our blood sugar, reduce hypertension, and make us lose five pounds.

Canada has been described as a functional food powerhouse  because of our academic expertise, raw agricultural materials, and proximity to the US.  In fact, Osgoode’s home base recently topped a number of globally innovative cities for registering food related patents with the USPTO.

Given the patent system’s supposed ability to fuel progress, should we look to patents to drive R&D to create healthier foods?

Functional Food Patents

Functional food inventions can be patented if they fall under patentable subject matter and are new, non-obvious, and useful. The discovery of a functional food that already exists in nature will not be patentable (e.g. pomegranates). Also, cross-breeding blueberries may not pass the innovative mustard. Higher life forms, for example a genetically modified mouse, are barred from patenting while genetically modified plants genes have squeaked through.  Examples of functional food patents that have met the legal requirements include a method of preparing probiotic cereal flour and anti-hypertensive fish proteins.

Overall, it appears that functional food patents are a relatively un-tapped market.  Considering their potential, why are inventors only starting to focus on functional food patents in Canada?

Patent Claims vs. Health Claims:

To redeem the significant financial investment required to obtain a patent, intellectual property owners often look for a market to sell or licence their invention. In Canada, functional foods are regulated under the Food and Drugs Act  as either a “food” or “natural health product” (NHP).

Depending on the food or NHP categorization, functional foods will be subject to different requirements for safety, labelling, advertising, and post-market surveillance. Both regulatory regimes strictly control what can be said about health on labels and other promotional materials and bar false and misleading claims.

In addition, new functional foods (and ingredients) must go through a lengthy government approval process for safety and a separate process for new health claim approval. The food and NHP (to a lesser extent) regulatory environments may prevent or severely limit IP owner’s ability to tell customers about health benefits.  Ultimately, this may represent a significant barrier to innovation and could factor into the cost/benefit ratio for investing in R & D and the patent process.

Ethical Eating?

Patenting food cooks up similar ethical and moral pressure points as patenting pharmaceuticals and biotechnology, such as increased costs, barriers to life saving treatment, and bio-piracy.

Obesity and chronic disease are now a global problem that disproportionately affect medium to low income countries. Higher food costs related to patents could increase food insecurity and inhibit further economic development in poorer countries burdened by healthcare costs.

Fruit, Vegetables, and Whole Grains Already Exist!

Unlike infectious diseases, we can often treat obesity and chronic diseases by eating a healthier diet, exercising, and reducing stress. Why do we need more innovative foods when the old ones still work and are pretty cheap? Furthermore, patenting foods may go against the grain of Michael Polan and other local, organic, and simple ingredient food movements.

Safety and Health Washing:

The recent XL food recall demonstrates the importance of safe food. While our food regulatory system may be cumbersome, there is likely a strong rationale for safety precautions and scientific and administrative barriers. In addition, allowing generally unhealthy food (high in salt, sugar, or fat) to carry health claims related to patents could open a whole new can of sour worms!

Wherever you stand on patenting as a means of driving R & D investment into healthier food, it is something we need to continue to explore. If Canada is truly a functional food powerhouse, we may be missing opportunities to improve our health, grow our economy, and create jobs. On the other hand, the patent system may be the wrong tool and could have negative health, economic, and ethical consequences.  Either way, hopefully others will continue to chew and digest on the potential use of the patent system to stimulate R & D into healthier food.

Amanda MacNaughton is a JD candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.  As part of the program requirements, students are asked to write a blog on a topic of their choice.