As consumer demand shifts towards healthier lifestyles, the food industry is rapidly evolving beyond traditional nutrition. Diet trends such as keto, vegan and other wellness-focused regimes are driving investment into products that offer more than basic sustenance.
These include functional beverages, plant-based alternatives, enhanced infant formulas and botanically enriched foods. As a result, a new category of functional foods is gaining commercial traction.
These products not only nourish consumers but also deliver specific health benefits or support defined physiological outcomes. However, that commercial proposition raises an important legal and strategic question for businesses: can these innovations be protected under patent law? Understanding the law of functional foods is becoming increasingly important as the market expands.
A growing IP battleground
In principle, functional foods can be patented in several ways. Protection may attach to a novel composition, its use or the health benefits associated with its consumption. However, the complexity lies in whether those benefits are therapeutic. If they are, businesses must navigate method-of-treatment exclusions. If they are not, the claimed benefit cannot confer novelty on a known composition.
Under South African patent law, methods of treating humans or animals by therapy are excluded from patentability. However, substances or compositions intended for use in such methods may still qualify for protection. This creates a nuanced distinction.
While treatment methods cannot be patented, the products used in those treatments potentially can. Furthermore, this framework closely aligns with European patent law. South African courts frequently look to that system for guidance. This distinction remains central to the law of functional foods and how businesses protect innovation.
Drawing the line between nutrition and therapy
A key issue for companies developing functional foods is whether a claimed benefit qualifies as “therapeutic”. Although South African courts have not directly interpreted the term in this context, guidance from the European Patent Office suggests that therapy includes treatment aimed at curing, alleviating or preventing disease.
Crucially, therapy does not extend to general health maintenance, nutrition or normal physiological development. Therefore, this distinction can determine whether a product falls within or outside the statutory exclusion.
Recent European decisions highlight how finely balanced this line can be. In a case involving Nestlé and Nutricia, the EPO Board of Appeal considered an infant formula claimed to promote postnatal growth comparable to that of breastfed infants. The Board concluded that supporting normal growth did not amount to therapy because it did not address a pathological condition. As a result, the Board treated the claim as a standard product claim rather than a therapeutic one. Under patent law, only therapeutic uses can confer novelty on known compositions through special “for use” provisions.
Without a therapeutic benefit, and without a novel composition to distinguish it, the patent ultimately failed for lack of novelty. For businesses, the implication is clear. When companies frame benefits as general wellness, novelty must lie in the formulation itself rather than in the claimed outcome.
Where therapeutic claims succeed
By contrast, patent authorities have granted patents where functional foods demonstrate clear therapeutic effects. For example, Nestlé has secured patent protection for a composition containing cocoa polyphenols and dietary fibre. The composition is designed to prevent or treat gastrointestinal and allergy-related disorders.
In that instance, the EPO accepted purpose-limited product claims. These claims are commonly referred to as products “for use” in treating specific conditions. The EPO accepted them because the therapeutic effect was both credible and properly supported.
Given the alignment between European and South African law, similarly structured claims are likely to remain viable locally under the right conditions. These developments continue to shape the law of functional foods in both jurisdictions.
Claim strategy is key
South African case law also provides guidance on how businesses should frame such claims. Courts have endorsed “for use” claims for first medical uses of known substances. However, they require so-called Swiss-type claims for subsequent uses.
Swiss-type claims are directed to the use of a substance in the manufacture of a medicament. However, they do not sit comfortably with functional foods. This is because consumers eat functional foods as finished products rather than manufacturing them into separate medicaments. Consequently, purpose-limited product claims offer a more practical route in cases involving therapeutic benefits. This is particularly true in light of European practice.
Commercial implications
For businesses operating in the functional food sector, the legal position creates a clear strategic divide. When a product offers general nutritional or physiological benefits, patent protection should focus on the composition, formulation and manufacturing process. Any associated health benefits may support the invention. However, they will not, on their own, establish novelty for patenting purposes.
By contrast, when a product delivers a genuine therapeutic effect, such as preventing or treating a medical condition, businesses may pursue more targeted protection through purpose-limited claims. However, they must draft these claims carefully to navigate the patentability exclusion for methods of treatment.
A complex but valuable opportunity
For companies investing in this space, securing meaningful patent protection is not straightforward. It requires careful alignment between scientific evidence, commercial positioning and legal strategy. Those who get it right can gain a significant competitive advantage as the sector matures.
As innovation accelerates, the law of functional foods will play an increasingly important role in determining which products secure strong intellectual property protection and long-term commercial value.
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Thandanani Cwele | Senior Associate | mail me | |
with oversight from David Cochrane | Partner | mail me | |
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| Spoor & Fisher | |
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