PDO ingredients, Court of Justice misstep on champagne sorbet
In the run-up to the Christmas holidays, the judges of Luxembourg pulled a dirty trick on Champagne. And to PDOs, more broadly Affirming the legitimacy of the reference to French bubbles in a sorbet by German discount store group Aldi. A dangerous precedent.
Protection of PDOs and PGIs, rules in EU
II EU Regulation 1151/12 ‘on quality schemes for agricultural products and foodstuffs‘ updates a discipline that dates back to 1992, for the protection and enhancement of agri-food productions characteristic of territories.
Names registered in Europe as
PDO
(Protected Designations of Origin) and PGIs (Protected Geographical Indications) ‘are protected against:(a) any direct or indirect commercial use of a registered name for products that are not the subject of registration, if (…) the use of such a name enables the exploitation of the reputation of the protected name, including when such products are used as an ingredient; (…)
(d) any other practice
that may mislead the consumer as to the true origin of the product‘ (1).
PDO ingredients, the rules to follow
The European Commission, in its Guidelines on the Labeling of Foodstuffs Containing PDO and PGI Ingredients, (2) indicated the following criteria:
– in the ingredient list alone of other food containing it, the PDO or PGI may be indicated, with express mention of its registered name, without further charge,
– in the name
of the compound product
– or in other parts of its label, or in advertising-the PDO or PGI may be mentioned when the following conditions are met:
1) exclusive. ‘the said food product should not contain any other “comparable ingredient,” that is, no other ingredient that can fully or partially replace the ingredient benefiting from a PDO or PGI.’ In other words, The PDO or PGI must be the exclusive component of the commodity category to which it belongs, (3)
2) significant quantity. ‘The ingredient should be used in sufficient quantity to impart an essential characteristic to the foodstuffin question’, (4)
3) indication of quantity. The amount of the ingredient to which evidence is given must also be specified, in relation to the total, (5)
4) In Italy, the authorization of the ‘
Consortium for the protection
of the protected designation‘, which is responsible for including ‘in a special register activated, maintained and updated by the Consortium itself‘ the users of the PDO or PGI in the composite product. (6)
The European approach tends to ensure that-whenever it is bragged about-the presence of a PDO or PGI ingredient is significant (with exclusivity on the commodity category of ingredients used) and communicated to the
consumer (by indication of its quantity).
The Italian legislature has gone further, giving consortia the role of overseeing both the traceability of protected ingredients (with a view to preventing fraud) and marketing operations that could damage the reputation of the protected name. (7)
PDO ingredients, the misstep of the EU Court of Justice
The EUCourt of Justice has been asked to give a preliminary ruling on the legality of the reference to champagne-registered in Europe as a PDO-in the name of a sorbet that contains it in an albeit modest proportion (12 percent). (8)
The dispute at the origin of the European lawsuit was initiated in Germany by the Comité interprofessionnel du Vin de Champagne (CIVC) against Aldi, the German discount supermarket giant.
The interpretative question moreover concerns a rule that offers wines with protected designations of origin a theoretical level of protection even higher than that provided for the generality of PDO and PGI foods.
The [DOP] and protected geographical indications and wines who use such protected names in accordance with the relevant specification are protected against: a) any direct or indirect commercial use of a protected name: (…) to the extent that such use exploits the reputation of a designation of origin or geographical indication. (9)
The Court of Justice recognized the applicability of the aforementioned rule to the case of Champagner Sorbet, ‘which doesnot comply with the specification for that PDO, but contains an ingredient that complies with it.’ (10)
However, according to the Court, ‘the name “Champagner Sorbet” used to designate a sorbet containing champagne is likely to impinge on that product the notoriety of the PDO “Champagne”, which conveys images of quality and prestige, and thus to procure an advantage resulting from that notoriety.‘ (11)
The EU judges therefore concluded that ‘exploitation of the reputation of a protected designation of origin‘ occurs only ‘where that foodstuff does not have, as an essential characteristic, a taste conferred primarily by the presence of that ingredient in its composition.’ (12)
A political decision
, one would say, marked by
neoliberalism
rather than the protection of the geographical indication system established in Europe. Nothing new except regret, after the European institutions included in CETA the basis for dismantling the system itself.
Dario Dongo
Notes
(1) See reg. EU 1151/12, Article 13.1
(2) ‘
Guidelines on the labeling of food products using protected designation of origin (PDO) or protected geographical indication (PGI) products as ingredients.
‘, at
http://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=CELEX:52010XC1216(01)&qid=1514884013332&from=EN
(3) For example, Prosciutto di Parma PDO must be the only one among the processed meats in the filling of ‘tortellini al Prosciutto di Parma’. Conversely, Parmesan cheese may not be mentioned in the name of a mix of grated cheeses that contains others
(4) ‘The Commission cannot, however, in view of the heterogeneity of possible cases, suggest a uniformly applicable minimum percentage‘
(5) V. reg. EU 1169/11, Article 22. See also the article https://www.greatitalianfoodtrade.it/etichette/cheese-scam-la-frode-a-fettine
(6) Cf. d.lgs. 297/04, ‘Penalty provisions pursuant to Regulation (EEC) No. 2081/92, on the protection of geographical indications and designations of origin for agricultural products and foodstuffs’, art. 1.1.c
(7) If it was not prescribed ex lege the authorization of the Consortium for the protection of the relevant PDO, on the other hand, a minimal share of Parmigiano – albeit, as the only cheese – in the Pringles recipe would be enough to claim the presence of the famous Italian PDO in a product emblematic of ‘junk food’, with obvious damage to the reputation of the Reggiano cheese
(8) Case C-393/16, judgment 20.12.17, available at.
http://curia.europa.eu/juris/document/document.jsf?text=&docid=198044&pageIndex=0&doclang=IT&mode=req&dir=&occ=first&part=1&cid=863443
(9) See reg. EU 1308/13, establishing the Common Organization of Agricultural Markets (CMO), Art. 103, paragraph 2.a.ii
(10) See judgment referred to in Note 8, paragraph 36 and item 1 of the operative part
(11) Idem c.s., para. 41
(12) Ibid, device, item 2. Except that it is then left ‘to the national courts to assess, in light of the circumstances of each individual case, whether such a use is intended to exploit the notoriety of a PDO‘ (paragraph 46)
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
