Traditional Welsh Perry is the latest addition to the other UK foods and beverages (Cornish pasties, Scottish Farmed Salmon and Blue Stilton Cheese to name a few) which have protected geographical status under European law. But what is likely to happen to this scheme after the UK leaves the EU on 29 March 2019? The government has given limited guidance to the sector as to what to expect in post-Brexit Britain. Is a domestic protection regime the answer or should the UK leave these forms of protection behind?
Where are we now?
Under EU law, the name of a product with specific qualities as a result of its geographical origin can be given indefinite protection against imitation elsewhere in the EU. Individuals or groups of producers from EU Member States can apply for three different protection marks:
- PGI (Protected Geographical Indication) – the most common form of protection in the UK: an agricultural foodstuff or product must have a reputation, characteristics or qualities as a result of its production, processing or preparation in a particular geographical area (eg, Traditional Cumberland Sausage).
- PDO (Protected Designation of Origin) – this has tighter requirements than the PGI: all three stages (production, processing and preparation) must take place in the designated area and the agricultural foodstuff or product must be made using distinct local knowledge (eg, Cornish Clotted Cream or Native Shetland Wool).
- TSG (Traditional Speciality Guaranteed) – a product with traditional characteristics arising from its ingredients or production methods (eg, traditional Bramley apple pie filling). The product need not be linked to a geographical area and can be produced in any EU Member State.
Protected status is indicated by official labels on a product’s packaging and helps deter copy-cat competitors from marketing inferior imitation products anywhere in the EU. It also differentiates products from competitors, helps establish a premium brand and can even promote tourist interest and spend in places of origin.
What is the current process for registration?
Under the EU system, producers agree on a specification (eg, among other things, Melton Mowbray pork pies must contain at least 30 per cent fresh pork meat) and submit this to their relevant national authority (Defra in the UK). Once the national body is satisfied, it passes the application to the EU Commission for final approval, subject to an opposition period.
What will happen to existing registration on Brexit?
Britain does not currently have its own domestic legislation dealing with protected geographical status. The European Union (Withdrawal) Bill, designed to remove the supremacy of EU law, provides for existing European laws (including those on protected geographical status) to be carried over and become domestic legislation. The UK government can then tweak and tailor these to fit the new relationship. The European Commission has proposed that products with geographical status registered under European law at the date of Brexit should continue to enjoy protection in both the EU and the UK markets, at minimal cost or inconvenience to the registered holder(s). This will require a reciprocal agreement, alongside the many other issues needing to be settled as part of the “future relationship” talks.
What are the post-Brexit options for protecting previously unregistered products?
We are largely in the dark over what domestic regime (if any) will operate after Brexit to protect the names of foods and beverages which are geographical indications, although we understand that government policy supports continuing protection in principle. Options for the UK government include:
Establishing a British protected geographical status regime in domestic legislation – Back in 2016, Liz Truss, then Secretary of State for the Environment, Food and Rural Affairs, said she would “like to see a British protected food name status in the future”. Since then we have heard little about the government’s plans in this area. As well as continuing to protect products registered under European law at the date of Brexit, new domestic legislation could establish a regime to register previously unprotected UK, EU27 and international products with geographical status in the UK market. This domestic regime could also be the gateway to registering previously unprotected UK products in the EU market too, as the EU Commission is mandated to approve a product under EU law after the same product is protected under its national regime – this is how products like Darjeeling tea and Colombian coffee are protected in the EU market. EU protection even extends beyond the EU market when international protection for EU registered products is negotiated as part of free trade agreements (eg, Canada and Japan) or specific stand-alone agreements (eg, China).
Bilateral agreements – international trade agreements can deal with protection and sale of products with geographical indications elsewhere in the world. Given the scope of the UK government’s trade discussions following Brexit, relying solely on this approach could make for slow progress and lead to multi-layered protections for one product, making it harder for producers to monitor and pursue infringers.
Producers should not forget alternative forms of protection for foods and beverages, which include:
Extended form passing off claims – a group of traders can share protectable goodwill in a trade name that the UK public views as distinctive of a particular type of food or beverage. An example here is “Greek yoghurt” or “Scotch whisky”. The traders may be able to enforce their rights against someone using the name on products with different characteristics or originating elsewhere. Extended form passing off claims require substantial evidence to prove the necessary goodwill and do not offer the certainty of a registered right.
UK certification marks (eg, Kite Mark) – producers use these to indicate to consumers that their product meets quality standards set by a separate certifier (eg, BSI). A quality standard can be that a product originates from a particular location; for example, stilton cheese can be labelled “Stilton®”, “Stilton is a Certification Trade Mark” or bear the Stilton Cheese Makers’ Association logo if (among other things) it is manufactured in Derbyshire, Leicestershire or Nottinghamshire. Industry associations can act as certifiers and monitor use of the mark on products within the UK market, as the Stilton Cheese Makers’ Association has done for the Stilton certification mark since 1969. Maintaining and evidencing compliance with certification marks comes at a cost to producers and the strength and impact of certification marks depends on the recognition and respect given to the certifying body.
Unlike the UK system, the newly introduced EU certification mark does not protect products on the basis of geographical characteristics, instead requiring producers to rely upon PGI, PDO and/or TSG status for protection. When considering the use of UK certification marks as an alternative route of protection, producers should bear in mind that the scope of UK certification marks may change in the future, especially if the UK government introduces a domestic protection regime. It may also be wise to “future-proof” any geographical origin/boundaries – the “It’s Our Cheese!” campaign was started because Stilton village is in Cambridgeshire, which falls outside the certification mark’s three listed manufacturing counties.
Is a domestic protected geographical status regime the answer for post-Brexit Britain?
In 2012, foods and beverages protected under the European regime were sold across the EU market for 1.55 times the price of unprotected items, though the UK-only figure was lower, at just 1.07. In order to justify the cost and administrative burden it entails, as well as the higher production costs of complying with registered specifications, a domestic protected status regime would need to support premium pricing.
A domestic protected status regime could improve upon the European system, by strengthening enforcement procedures and streamlining the application process – cutting down on the 10 years it took Melton Mowbray pork pies (overcoming an application to court by Northern Foods Plc) to obtain protected status in the EU market seems attractive! However, the UK may find itself bound by agreement with the other 27 EU Member States to mirror elements of the EU system. Care will be needed in introducing any new scheme, to avoid creating unintentional monopolies or setting up a system that is too costly or burdensome to be of value.
It is worth remembering that the UK has a relatively low number of registered products with geographical indications (69) compared to some other EU Member States, such as France (245) and Italy (294). Add to this the fact that just 8 per cent of UK shoppers recognise the protected status badges on product packaging. Protected status can work against UK industry, as the 2003 dispute between supermarket Asda and Parma ham producers illustrated; when a PDO was used to stop sales of genuine Parma ham from being sliced and packaged in the UK for sale in UK supermarkets.
Does this mean that establishing a domestic registration regime is not worth the time or cost? So far, the UK has succeeded with a “small but mighty” approach to geographical indications, with eight protected fresh meat products accounting for 40 per cent of GI-protected EU fresh meat sales in 2010. And Scotch Whisky is one of the top 10 protected products, reportedly bringing £5 billion per year to the UK economy. Ultimately though, unless the UK government is willing to continue its share of the EU’s funding commitment of over €100 million a year to promote protected foodstuff and agriculture products across the EU, a domestic protection regime could be swimming against the Channel tides from the very beginning.