The Case For Incentivizing Healthy Food By Using Patents.

• Author: Bonadio, Enrico

1. Introduction II. Food-Related Patents: Some Examples III. Proposals to amend patent Regimes to Incentivize the Production of Healthy Foodstuffs A. Fast-Track Procedures for Patent Applications Related to Healthy Food B. Exempting Healthy Food and Beverage Patent Applications from Paying Fees C. Excluding Unhealthy Food from Patentability D. Additional Proposals? IV. Objections and Counter-Arguments A. Discrimination vs. Differentiation B. Differentiation and the Refusal of the Neutrality Principle C. The Paradox of the Neutrality Principle D. Other Arguments and Counter-Arguments in Relation to the Third Proposal E. Unreasonable and Cumbersome Proposals? V. Conclusion I. Introduction

   Could patents contribute to incentivizing companies to manufacture and market healthier foodstuffs and beverages? How could the patent system be amended to enable such a contribution and thus play a role in the fight against diseases caused by the consumption of unhealthy food? More generally, is the patent system suitable for carrying out such tasks? In this article I will try to answer these questions and in doing so I will put forward three proposals.

   As is well known, the need to supply healthy food and beverages (1) constitutes an important priority globally, as many people in both industrialized and developing countries struggle with obesity and other noncommunicable diseases (NCDs) caused by the consumption of unhealthy products. Such need has been stressed in several international fora, such as the 2004 World Health Organization (WHO) Global Strategy on Diet, Physical Activity and Health, the 2011 United Nations (UN) Political Declaration on NCDs, and the WHO Global Action Plan for the Prevention and Control of NCDs 2013-2020. (2)

   recent data clarifies why it is important to take action urgently. Obesity worldwide has more than doubled since 1980. (3) In 2014, over 1.9 billion adults were overweight and of these more than 600 million were obese. (4) That means that thirty-nine percent of adults were overweight in 2014 and thirteen percent were obese. (5) In fact, "most of the world's population live in countries where being overweight and obesity kill more people than being underweight." (6) And, in 2013, forty-two million children five years old and younger were overweight or obese. (7)

   It is also well known that obesity increases the risk of NCDs, such as coronary heart disease, stroke, high blood pressure, diabetes, cancer (including endometrial, breast and colon cancer), cholesterol, liver and gallbladder disease, infertility, and mental health conditions. (8) NCDs kill thirty-eight million people each year worldwide, and an unhealthy diet is the main risk factor. (9) Additionally, 2.8 million people die yearly as a result of diet-related NCDs. (10)

   Obesity and other illnesses derived from the consumption of unhealthy food also entails high economic costs for societies and cause reduced work productivity.

   This article will make the point that using the patent system and, in particular, amending certain substantial and procedural rules, may be one of the answers to the above problems. Indeed, I believe that patent law, far from being neutral, should deal with these issues and be capable of pushing food companies into manufacturing healthier products. This belief can be echoed in the words of the former Director General of the World Trade Organization (WTO) Pascal Lamy: "The international [intellectual property] system cannot operate in isolation from broader public policy questions, such as how to meet human needs as basic as health[and] food." (11) It should also be remembered that the right to health, which includes the right to consume healthy food, is protected as a fundamental and human right by international and regional provisions, such as the 1948 Universal Declaration on Human Rights: "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food." (12) The European Union (EU) is also particularly keen to protect people's health. Indeed, the EU Charter of Fundamental Rights reminds us that "a high level of human health protection shall be ensured in the definition and implementation of all the Union's policies and activities." (13)

2. Food-Related Patents: Some Examples

   The proposals I will highlight appear to be timely as food and beveragerelated patents are increasingly applied for and granted around the world, especially in the United States (U.S.). An examination of several databases revealed the existence of many patents related to new and improved foodstuffs.

   Take, for example, the U.S. Patent No. 5260087 covering an invention entitled "Fat and egg yolk substitute for use in baking and process for using substitute." (14) As is explained in the patent's specification, "fats and eggs produce[] desirable taste and sensory qualities in the baked goods," but "also contribute much fat and cholesterol to the baked items." (15) The main purpose "of this invention [is] to provide a low-fat compound which can be used in baking cookies and cakes as a substitute for fats and egg yolks, while still producing the desired product taste and sensory qualities." (16) This invention further aims "to provide a very low fat compound and a method of using it that will not only produce a tasty and tender baked item, but will also contribute to increased item shelf life." (17)

   The U.S. Patent No. 8647696 is also relevant. (18) The invention comprises of a shelf stable and low-fat food containing gas bubbles. (19) The applicant notes in the specification the food industry's need to meet low-fat targets while keeping the taste of the product as appealing as possible:

   Particularly in the West, obesity is a major cause for concern. Health conscious consumers are increasingly looking for products that have low fat and calorific content. However, they are often not prepared to accept healthier alternatives that have poor (or even different) taste and/or texture to the traditional products. Thus, food manufacturers face the problem of making low fat alternatives to some of the consumers' favourite products such as desserts, cooking sauces and salad dressings that not only taste as good but that also give the same texture and sensation in the mouth when eaten. Fat plays an important role in giving products their distinctive texture as well as taste. Although fat can be removed and/or substituted to produce a healthier product, if it does not have the same organoleptic properties as the equivalent 'full fat' alternative it may not meet with customer acceptance. (20) Analogous concerns are expressed in the description of the U.S. Patent No. 6485775 covering a starchy, food-based fine particle useful as a fat substitute in a variety of food products:

   For many years, doctors have recommended low fat diets. Accordingly, the food industry has directed substantial effort at finding fat substitutes which demonstrate the taste and mouth feel characteristics of fats without their detrimental properties....Potato granules and flakes are commercially available sources of dehydrated potato product having known characteristics. However, they have not been used as a fat mimetic. There is a need for an inexpensive fat mimetic which does not have the detrimental effects of fat on the consumer. (21) A similar invention is described in the International Patent No. WO 2013162802 A1, which refers to fat particle compositions containing salt, dough, and baked-dough articles made therefrom, and related methods. (22) The specification explains that

   These fat particle[s] can be used to prepare dough formulations that meet the desire of being more healthful than previous dough formulations due to a reduced sodium content, optional more healthful fat content (e.g., low trans fats or low saturated fats), or both.... These days, consumers, regulators, and food companies desire to lower total sodium content in food products.... Fats typically used in these types of dough products are triglyceride-based fats that commonly contain a fairly high level of saturated fats and trans fatty acids. Due to a present trend toward healthier dough and bakery products, there is demand for products that contain healthier fats (i.e., having a reduced amount of saturated fats and trans fatty acids) without sacrificing taste and baking performance of the dough. In view of the foregoing, alternative fat compositions that are low in saturated and trans fatty acids are very desirable. (23) The above are just a few examples of patents that protect healthier food products or processes. They show the interest of certain sectors of the food industry in fighting obesity and related illnesses by developing improved foodstuffs and accordingly meeting the concerns of an increasingly conscious category of consumers aware of the risks stemming from the consumption of highly fatty and highly, caloric products.

3. Proposals to amend patent Regimes to Incentivize the Production of Healthy Foodstuffs

   The trend of healthy-food patenting is certainly a positive step for the purpose of enhancing consumers' health. The fact that food companies spontaneously feel the need to come up with healthier products, even when prompted by the mere desire to pursue commercial profits, is not only a trend that should be praised, but it should also be incentivized. Food is indeed a low-profit-margin business. Indeed, as it is necessary for everyday life, everyone buys food. This entails that companies that manufacture and sell food face more competition than other businesses, which push prices down toward marginal cost and drives profit down toward the minimum that lets business survive. Such low profit margins clearly give patents a much stronger incentive effect in the food industry than in any other sector. (24)

   That is why I propose to utilize and amend patent regimes and procedures with the specific aim of encouraging the...