As a small-scale artisan producer of Native Shetland Lamb my business has benefitted from Shetland Lamb being awarded Protected Designation of Origin (PDO) status when the scheme was introduced in 1996. The main benefit for artisan producers such as myself, who don’t have the sales volume to support for a major marketing campaign, is the kudos of having passed such a rigorous selection process. This is what sets our products apart when seeking to attract customers to sample our product.
For 20 years, producers of PFN products have had to rely upon EU law to enforce the protection because for some reason the UK government has never completed the process writing the protection into UK law.
It was my fear that, post Brexit, the Shetland Lamb brand might be undermined by “fake-farm” labelling which the PDO currently prevents. This prompted me to attend my MP’s surgery and ask him to seek clarification. On the 6th November 2016, Andrea Leadsom MP, Secretary of State for Environment, Food and Rural Affairs wrote to my MP Alistair Carmichael,
“Alongside the work that is being done to determine the most appropriate long-term way of protecting UK Graphical Indications once the UK has left the EU, Defra will also be taking forward the work it was previously doing in relation to the PFN Statutory Instrument with a view to those Regulations before the UK leaves the EU”.
This was reassuring until I heard her Minister of State at the Department for Environment, Food and Rural Affairs, George Eustice MP advocating replacing GI protection with a “simpler” and “cheaper” alternative, using Trademarks. I believe that this change of policy might be driven by the zealots in the leave campaign who find the very existence of PDO and PGI designations together with their EU inspired logos offensive. Also, I find it worrying that The PFN team at Defra was re-staffed in 2017. This means the personnel given the task of “determining the most appropriate long-term way of protecting UK GIs” have no experience of how the status quo has been arrived at. Up until last year, the previous team had been shepherding applications of new products for several years and the leader had been in post during the whole of the life of the EU scheme.
Geographical Indications versus Trade Marks
- GIs are community assets with a social capital value. Trade Marks are corporate assets that can be traded.
- GIs are granted to products that meet internationally agreed criteria based on quality, tradition and terroir. Trade Marks can be purchased for any product using criteria chosen by the producer.
- The cost of GI applications, administration and enforcement is paid by Government. The cost of Trade Mark applications, administration and enforcement is paid by the body that owns them.
- International recognition of GIs is granted by trade agreements between countries. International recognition of Trade Marks must be purchased by the owner in each individual country.
- The GI protection is available to all producers who meet the production criterion set out in the regulation granting protection. It is not clear if using the same criteria would grant the same protection from a purchased Trade Mark.
- It is unclear if abandoning GI protection regulations without them ever being written into UK law and then leaving producers to make their own arrangements using Trade Marks will set aside existing legal precedence that protects producers.
Where GI protection is available, Trade Mark protection is complementary not an alternative. Stilton Cheese had been protected by trademark for many years prior the UK joining the EU but the producers of Stilton made use of PDO protection as soon as it was introduced.
Trade Marks are defined by the owners. In the case of Cornish Pasties PDO and Melton Mobray Pork Pies PGI the market leading owners are Samworth Brothers Ltd (a public company). In a Trade Mark only scenario, Samworth Brothers Ltd could use their corporate power to sideline the smaller producers, gain control of the Trade Mark definition and evolve the production in any way they choose.
The application process for new additions for EU GI protection is in effect a trade negotiation with each of the 27 other EU states. Consequently, for example, at the EU Council of Ministers Cyprus says, “We will only support a UK position if the UK will support the grant of PDO status to our cheese in return”.
This will be an issue for post Brexit trade negotiators. I think it unlikely a post Brexit trade negotiation will treat GI protection for the complete list of products as one bargaining chip. Instead protection for each product will require a concession for the other side.
I may not be correct about this, but I understand that the UK did not seek protection for any of its GI products in the EU’s CETA trade negotiations with Canada and only listed 9 out of 70 in the EU’s TTIP negotiations with the USA.
The EU GI Regulations give protection in 7 areas,
• False or misleading indication as to the provenance
• Exploitation of the reputation
• Direct misuse of the name
• Indirect misuse of the name
• Any other practice liable to mislead the consumer!
For example; manufacturing Cornish Pasties in France could be challenged in court with or without horse meat as an ingredient. The regulations required Marks & Spence to stop using “Melton Mobray” as a fake-farm style brand for their pies.
The use of the GI (pictorial or letter) logos are the easiest to enforce. To help reassure consumers, the GI regulations were enhanced to require that the GI logo is prominently displayed next to the product name on packaging. Marks & Spence had to change its packaging for Jersey Royal Potatoes, which named the farmer, but without reference to the PDO. The original packaging, did not make it clear if the potatoes were genuine or if Marks & Spencer were just using fake-farm labelling.
Why are GIs important?
For the biggest sellers, GIs grant protection from brand grabs by multinationals. Even if the total production is purchased by a multinational, the production cannot be relocated or reformulated. You only have to look at the scale of the Kaft Heinz $143 billion bid to merge with Unilever to understand the value the big food corporations place on brands with Worldwide recognition.
For small producers growing their market, the Gi protection prevents the supermarkets commissioning their manufactures to produce an own brand version. The Dragons Den TV investors attach great importance to such exclusivity.
What happens if there is no reciprocal agreement relating to GIs?
Iceland does not have a GI agreement with the EU so when one of Iceland’s national foods, Skyr produced in Iceland, started to sell well across the EU there was nothing to prevent Arla foods from adopting the name for a German manufactured new product.
Criticisms of the GI protection Regulations.
- Most vocal are the Europhobes - To be expected.
- New products developed in a locality do not qualify to gain protection. – Cornish Yarg cheese
- Producers do not have the final say on the criteria written into the regulations.
- The application process is lengthy and too detailed. – Unsurprising, given the transnational agreement and legal scrutiny required. - The level of detail is what has allowed the regulations to withstand several robust legal challenges.
- They are a restriction on trade – A prominent case was the refusal to allow the sale of “Yorkshire” Feta Cheese because Feta is a Greek PDO product.
- Many pressure groups have their own and differing views of what criteria should be used to enable products to qualify for protection. – Campaigners have sought the abandonment of the protection for all products because they did not agree with one specification.
Ultimately, all we GI producers who don’t count our sales in millions of £s worth of exports have to hope that the government won’t abandon us.