Defra Consultations on UK Geographical Indication after Brexit Scheme & Improved enforcement of the Protected Food Names Scheme

In our blog What happens for food labelling & Geographical Indications if there's a no-deal Brexit, we reported on the UK government Technical Note about the impact of a “no deal” Brexit on geographical indications. There are now two Defra consultations on establishing and enforcing a UK geographical indication and protected food name scheme.

A geographical indication (GI) is a distinctive name used to identify a product as originating in the territory of a particular country, region or locality where its quality, reputation or other characteristic is linked to its geographical origin. Well-known examples are champagne, Parma ham, sherry, port, Melton Mowbray pies, Darjeeling tea, Cornish pasties and Feta cheese.  'Protected Food Names' are a subset of Geographical Indications, EU regulation 1151/2012 provides the basis for the protection of these products across the EU.  The UK currently has 76 agricultural products which are classed as a Protected Food Name

In the Technical Note, the government announced that the UK government would set up its own schemes for the protection of geographical indications in the UK after Brexit.  Yesterday,  the Department for Environment, Food and Rural Affairs (Defra) launched its Consultation on establishing UK GI schemes after Brexit (the Consultation).  This consultation closes on 1 November.

There is separate Consultation on improved enforcement of the Protected Food Names Scheme which will mean enforcement for protected food names in the form of civil sanctions (compliance notices). The proposed regulations will also introduce improved reporting of Protected Food Name inspection results by control bodies and a right of appeal in respect of decisions regarding the registration of a Protected Food Name. This consultation closes on 2 November.

Where does this leave GI stakeholders and what action should they take?

What will happen?

Currently geographical indication, “designations of origin” and “traditional specialities guaranteed” (Geographical Names) are protected in the UK through four EU regulations (the EU GI Regulations):

  1. Regulation (EU) No 1151/2012 on quality schemes for agricultural products and foodstuffs
  2. Regulation (EU) No 1308/2013 establishing a common organisation of the markets in agricultural products (covering the names of wines)
  3. Regulation (EU) No 251/2014 on the definition, description, presentation, labelling and the protection of geographical indications of aromatised wine products
  4. Regulation (EC) No 110/2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks

The EU has inserted a provision in draft Withdrawal Agreement that all Geographical Names protected under the EU GI Regulations (EU Protected Names) will after the expiry of the proposed transition period on 31 December 2020, automatically continue to be protected in the UK on the same basis.    However, this has not yet been agreed by the UK (we believe that this is because doing so could prove an obstacle to a trade deal with USA and other non-EU countries).

As matters stand, EU Protected Names will, after Brexit, only be protected in the UK under the UK’s domestic scheme.   Reading the Technical Note with the Consultation document, it appears that the UK’s scheme will take the following form:

  • The EU (Withdrawal) Act 2018 will retain the EU GI Regulations as they are at the point the UK leaves the EU, but these will be amended by the Quality Agricultural Products and Foodstuffs, Spirit Drinks, Wine and Aromatised Wine (Amendments etc.) (EU Exit) Regulations 2018 (the UK GI Regulations).
  • The UK GI Regulations have not yet been published but the Consultation document states that the amendments made by these to the EU GI Regulations will mainly be technical (e.g. replacing the names of EU authorities with UK authorities) but that there will also be some substantive changes, namely:
    • All applications for protection in the UK of Geographical Names will go through a single UK scrutiny and opposition process, and those wishing to apply for EU registration will need to do so through the separate EU procedure.
    • The introduction of revised appeals provisions.
    • Creation and use of new UK GI logos, including an adoption period for existing UK agri-food Geographical Names to comply with the requirement to use the new UK logo when trading in the UK market.
  • Following Brexit, the EU Protected Names which will automatically be protected in the UK will be UK produce names. EU Protected Names for non-UK produce (including names such as “port”, “sherry”, “feta” and “Parma ham”) will not enjoy automatic protection under the UK GI scheme (the Technical Note expressly states that the UK would no longer be required to recognise the status of EU Protected Names in the event of a “no deal” Brexit).

The last point will be of significant concern to non-UK producers.  The Brexit White Paper published in July stated that the UK scheme “will be open to new applications, from both UK and non-UK applicants, from the day it enters into force” and the Technical Note states “EU producers would be able to apply for UK GI status”.  However,  the Consultation document does not deal with the rights of non-UK producers.  It is therefore not at all clear which non-UK EU Protected Names (EU only or elsewhere in the world?) will be entitled to protection under the new UK scheme and under what circumstances.

What now?

Non-UK Geographical Names

As non-UK Geographical Names are unlikely automatically to be protected in the UK after Brexit and there will, at best, be a gap in protection in the UK before this can be obtained under the new scheme, producers of non-UK foods, wines and spirits with Geographical Names (and in particular non-EU producers) should now consider alternative forms of protection.

UK certification marks can be used to protect distinctive names products having a particular geographical origin or other characteristics.   Non-UK producers should therefore consider applying to register these names as UK certification marks (if they have not done so already).  An absence of registered protection will mean that they will have to rely on whatever UK goodwill they have built up in these names under the law of “passing off”.

UK Geographical Names

It appears that UK Geographical Names will continue to be protected in the UK after Brexit.  However, if there is any concern, UK producers should consider applying to register their Geographical Names as UK certification marks (if they have not done so already), to be assured of registered protection after Brexit.

With regards to their status in the EU after Brexit, the Technical Note anticipates that all current UK Geographical Names will continue to be protected by the EU’s GI schemes, but notes that producers might consider protecting their products by applying for EU collective marks or EU certification marks.  The Consultation document is less certain, stating that the UK is seeking to ensure that UK Geographical Names registered under the EU schemes will continue to enjoy protection in the EU, but that this is subject to ongoing negotiations.

The EU GI Regulations do not make any provision for EU Protected Names to lose their protection if the originating member state leaves the EU, and our view is that EU Protected Names from the UK will continue to be protected in the EU.

The backstop guidance given in the Technical Note is, however, incorrect.   EU collective marks can be used only by the associations of producers in whose names they are registered (whereas Geographical Names can be used may be used by any person marketing a product conforming to the corresponding specification).  These are therefore not appropriate vehicles for protecting Geographical Names in the EU.  EU certification marks (unlike UK certification marks) cannot be registered for geographical indications and therefore cannot be used to protect Geographical Names in the UK.

Those wishing to protect UK Geographical Names (which are not EU Protected Names) in the EU, may wish to consider filing their applications as soon as possible, before the UK leaves the EU and becomes a “third country”.  However, as such applications involve a two stage process (first in the UK and then in the EU), there is a real risk that such applications will not have proceeded to registration by Brexit on 29 March 2019. 

The alternative is to wait until the UK GI scheme is in force, apply for protection under that scheme and then apply for EU protection. 

The consultation(s)

  1. The Defra Consultation on establishing UK GI schemes is focused on the revised appeal provisions and the new UK GI logos, but also invites other comments on the new UK GI schemes.  Submissions can be made online.
    This gives stakeholders a one-off opportunity to help shape the new UK scheme for the protection of Geographical Names.  However, the window is narrow - the closing date for submissions is 1 November.
     
  2. The Defra consultation on improved enforcement of the protected food names scheme is designed to ensure the scheme delivers robust protection and its rules are clear. To this end the government is introducing bespoke enforcement legislation for the Protected Food Name Scheme. This will create a new civil sanctions regime which will address the misuse of a Protected Food Name. The civil sanctions regime consists of a compliance notice supported by a non-compliance penalty notice, and the option for the Local Authority to seek costs in the event that a non-compliance penalty notice has to be issued. Unlike the current enforcement regime which carries fines and/or custodial sentences, the sanctions under this proposal will extend only to monetary penalties and should help to clarify the enforcement options open to enforcing authorities.

Proposals for Enforcement of Protected Food Names

This proposal is to move to civil sanctions at a level of (up to) £40,000 with a right to appeal alongside a verification inspection process with right of entry, search and seizure etc. The main change here will be that there is a move from criminal to solely civil sanctions and there is a requirement for Defra to be notified within 28 days of an enforcement action relating to the misuse of a Protected Food Name taking place.

Producers wishing to legitimately use a registered Protected Food Name are required to have a verification inspection carried out on their product. These inspections are carried out by Control Bodies, which are either local Trading Standards or a commercial control body.  The proposal also sets out the requirement for Control Bodies undertaking verification inspections to notify Defra immediately if producers are not following the regulations, and to notify Defra of any other results (i.e. satisfactory inspection) within 28 days.

The notification of inspection results will mean that it will be easier to identify if a producer is legitimately using a Protected Food Name. It will also benefit producers by ensuring that Defra is able to communicate any changes to the scheme or proposed changes to the specification of the products they make.

Responses to the consultation should be made online by 2 November 2018.

For more information on this and any other IP related matter please contact Richard Plaistowe, Principal Associate for Mills & Reeve LLP on Tel: +(44)(0)1223 222475 or by Email: 
Richard.Plaistowe@Mills-Reeve.com

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