What am I buying? The integrity of certification labels

As consumers, we are used to scanning products in stores and on supermarket shelves for brands and labels. We understand the power of branding and the value of trademarks. Increasingly, products now also bear certification labels and claim certain qualities or characteristics such as: 

• This product is not tested on animals.
• This product is produced in an ethical/fair way.
• This product is produced in a sustainable way.
• This product is made in Australia.
• This product is a healthier choice and meets certain nutritional standards.

Consumer confidence in these types of product claim depends not only on the integrity of the certification programme, but also on the integrity of the companies that use and apply certification labels.

Australian consumer watchdog Choice recently reported on animal testing labelling and called for more information to be available for consumers so that those who want to choose products which are not tested on animals can do so. Choice's investigations revealed that inconsistent and confusing claims about animal testing are being made, leaving consumers confused about whether the product they are buying has been tested on animals. Earlier this year Oxfam also publicly questioned the practices of some major brand owners which claim sustainability and ethical production, but breach their own claims.

Trademarks are a 'badge of origin' in the sense that they indicate a connection in the course of trade between the marked goods and the person that applies the trademark to the goods (usually the owner of the trademark or someone licensed by the owner). However, a trademark is not necessarily a representation as to quality; rather, it indicates that the products or services provided under the mark meet a standard that is acceptable to the trademark owner, whether that standard be high or low.

A certification trademark is a trademark that has been applied to goods or services certified as having a particular quality or characteristic. Certification marks do not indicate trade origin, but should be a representation that the product or service meets the certified characteristics or quality. Products and services can be certified by independent third parties – for example, Choose Cruelty Free and The Leaping Bunny are independent third parties that certify products as not having been tested on animals. Other companies are certifying their own products, a practice that has been questioned by numerous consumer advocacy groups concerned that consumers may not always be getting what they think they are buying.

In Australia, the procedure for registering a certification trademark is far more onerous than that for registration of an ordinary trademark. The applicant must comply with extensive rules governing use of the certification mark, which are assessed by the registrar of trademarks and the Australian Competition and Consumer Commission for compliance with the Trademarks Act and the Competition and Consumer Act.

A company wishing to use a certification mark will be permitted to use the mark subject to compliance with the relevant rules. For example, Choose Cruelty Free will certify products as not being tested on animals and authorise the use of its certified trademark only if those products and their ingredients have not been tested on animals and the products are not sold in countries where animal testing is required by law (eg, China). So, the application of the bunny certification mark (the first image above) should be a representation that the product and the ingredients used to make the product have not been tested on animals. The certification trademark represents the integrity of the supply chain and the end product, and gives consumers the confidence that the product they are buying is what they think it is. 

Companies that apply certification trademarks or similar marks to their products when their products do not meet the certification criteria are:

• Misleading and deceiving consumers.
• De-valuing an intellectual asset (the certification trademark).
• In some cases, infringing registered trademarks. 

Significantly, consumers are not getting what they think they are buying.