Trade secrets in the food and beverage industry

In this article, Matt explores the importance of the food and beverage industry and how its patented processes, distinctive trademarks and innovative designs are essential to the success of businesses.

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Matt England | Connect on LinkedIn |mengland@hlk-ip.com

Trade secrets in the food and beverage industry

The importance of IP in the food and beverage industry cannot be overstated. The use of patented processes, distinctive trademarks and innovative designs are essential to the success of many businesses, and play an important role in maintaining their edge over competitors.  However, these rights typically cannot be used to protect the recipes and formulations which form the core of the industry’s products.  While it is almost inevitable that recipes that can be reverse-engineered will be copied, protection is still available for non-reproducible recipes that are not known to the public in the form of the trade secret.

Trade secrets have a number of advantages over other IP rights, in that they do not require any public disclosure or registration, can protect virtually any commercially valuable information (so long as it is kept secret), and can potentially last forever.  It is therefore no surprise that many of the world’s most valuable trade secrets are found in the food and drinks industry, in which companies have historically gone to great lengths to keep their trade secrets a secret.

The formula for Coca-Cola

Coca-Cola (or, more accurately, Coca-Cola syrup) was first created as a ‘patent medicine’ in 1886 by American Pharmacist John Pemberton.  However, like many such formulations at the time it was never actually patented, with Pemberton and his successors at the Coca-Cola Company (founded in 1892) choosing to protect it by keeping the formula secret.

According to company legend, the recipe was not even written down until 1919, with the company’s more modern strategies alleged to include having only two employees − whose identities are also a secret − who know the formula at any one time.  The company has also shown that it is willing to forego profit to protect the formula, including their 1977 decision to withdraw from India (where their products were extremely popular) rather than comply with a law requiring them to disclose it.  Today, the written recipe for Coca-Cola syrup is kept locked within a secure vault at the ‘World of Coca-Cola’ in Atlanta, Georgia, USA − although whether this is done for security purposes (or as a clever marketing tool) is unknown.

Even with such precautions in place, there have been near misses.  In 2006, an employee at the company obtained and offered an unreleased product and confidential documents (which allegedly contained the secret formula) to Coca-Cola’s main rival PepsiCo.  Luckily for Coca-Cola, PepsiCo didn’t bite, and instead informed Coca-Cola of the theft before reporting it to the FBI.

KFC’s blend of 11 herbs and spices

In 1964, Harland Sanders − known as the “Colonel” − sold his ‘Kentucky Fried Chicken’ business (KFC) to a consortium of investors.  The sale included the trade mark for the company’s slogan (“It’s Finger Lickin’ Good”), the patent application for his method of pressure-frying (granted in1966), and the secret blend of 11 herbs and spices which he had perfected in 1939.  More than 60 years later the trade mark is still in force (at least in the US and UK) and the blend has become one of the world’s most famous trade secrets.

Like Coca-Cola, KFC allows only a limited number of company employees to know the full recipe, and the Colonel’s original hand-written recipe is kept in a secure vault at the company headquarters (currently located in Louisville, Kentucky, USA).  To avoid providing the full recipe to suppliers, KFC reportedly also sources partial spice mixes from different suppliers, which they use to prepare their secret blend in-house before it is shipped to restaurants.

Despite these precautions, it is currently unclear whether the blend remains a secret, as a number of alleged blends – which are alleged to originate from the Colonel himself – have been made public in recent years.  In 1999, the owners of the Colonel’s former home in Shelbyville, Kentucky claimed to have found an old book containing a list of 11 herbs and spices, and asked KFC to authenticate it so that it could be auctioned off.  KFC responded by taking legal action to prevent the sale but dropped the case after examining the recipe and declaring that it was not the secret blend.  A second recipe was reportedly discovered in an old family scrap book in 2016, by a journalist who was interviewing the Colonel’s nephew-by-marriage (although no legal action appears to have been taken).  Most recently, in September 2025 the Colonel’s great-great-grandnephew posted a different recipe on social media which is alleged to be the secret blend.

KFC has not publicly responded to the latter two disclosures, and unless they do the blend’s status as a trade secret will remain in doubt.

Lea & Perrins Worcestershire Sauce

One of the longest kept secrets of the industry is the recipe for Worcestershire sauce, which was created by British chemists John Lea and William Perrins in 1837 (somewhat by accident) while they were attempting to fulfil a request from a wealthy customer. The preparation was initially deemed to be a failure by the two chemists, and was forgotten about until several months later when (for reasons unknown) the condiment was re-tasted and found to be delicious.

While there are fewer stories about how Lea & Perrins have kept the secret for so long, one clue can be found in a report of a 1915 court case, in which the company is said to have brought an action against a man they believed had acquired their ‘valuable trade secret’.  The case, however, was dismissed by the judge after the man swore under oath that he did not have the recipe and had no intention of using it.

The secret is believed to have been partially disclosed in 2009 when a former accountant at the company claimed to have found a list of ingredients in a skip near the Lea & Perrins factory.  However, the list of ingredients was not enough to reproduce the famously fermented sauce, and so the recipe remains a trade secret known only to a few employees at Lea & Perrins and its parent company.

What of trade secrets today?

Trade secrets in the UK have historically been a common law concept, but today are defined in the Trade Secrets (Enforcement, etc.) Regulations 2018 as being information which:

(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among, or readily accessible to, persons within the circles that normally deal with the kind of information in question,

(b) has commercial value because it is secret, and

(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

In other words, trade secrets are any secret information which is commercially valuable, and which the owner has taken “reasonable steps” to protect.

The meaning of “reasonable steps” is not given in the legislation, but there are precautions that companies can take to prevent the disclosure of valuable information that could be a trade secret.  These include the use of non-disclosure agreements (NDAs) when communicating with entities, the addition of confidentiality clauses to employee contracts, and the implementation of effective “information capture system(s)” to reduce the likelihood of unintentional disclosures.

HLK can help

Our experts at HLK can advise you on whether keeping trade secrets may be the best strategy for protecting your business, and when alternative protection such as patents should be considered.  If you have any questions relating to trade secrets, or any other intellectual property matter, please do not hesitate to get in touch.