Big Food lobbyists have succeeded in excluding brands that evoke a particular territory from the requirement to indicate the different origin and provenance of the primary ingredient. (1) On closer inspection, however, the usual clever people, in making the pots and pans, forgot the lids. Indeed, the suggestive mark of an origin other than the actual origin implies a duty to specify the true ‘Made in…’. And from the latter indication, which is outside the scope of the trademark, comes the obligation to specify the different origin or provenance of the primary ingredient.
Trademark and obligation to indicate ‘Made in‘
The trademark that evokes a territory – by means of graphic depictions (e.g., tricolor) and symbols (e.g., Apulian trulli, Venice lagoon, Colosseum, Tower of Pisa) and/or names and phrases (e.g., “The Tower of Pisa”). trademark ‘Please‘, ‘Miracles‘, ‘Italiamo‘, c.d. Italian sounding)-must be evaluated, like other non-mandatory news and images, as ‘voluntary information‘.
‘Food information provided on a voluntary basis meets the following requirements:
(a) do not mislead the consumer
[on origin and provenance, as well as other essential information, ed.]
as described in Article 7,
(b) are not ambiguous or confusing to the consumer, and
(c) are, where appropriate, based on relevant scientific data.” (2)
The general rules of information transparency apply to labeling, among other things, but ‘also:
(a) to publicity,
(b) to the presentation of food, particularly the form, appearance or packaging, the packaging material used, the manner in which it is arranged or the context in which it is displayed.” (3)
It follows that where the trademark evokes a country or territory of production other than the actual one, the latter must be specified on the label. In the example of ‘Miracles‘ pasta, with the tricolor in the mark, it is therefore mandatory to specify ‘Made in Germany.’ For the express purpose of preventing consumers from being misled about the origin and provenance of the product. Under the Food Information Regulation, Article 26.2.a, as clarified by the former Commissioner in charge of the matter.
Conversely, the mere indication of the name or business name of the responsible operator does not in itself entail the obligation to indicate the country of production (ex art. 2.2.g, EU Reg. 1169/11).
‘The name, business name or address of the food business operator affixed to the label does not constitute an indication of the country of origin or place of provenance of the food within the meaning of this Regulation.’ (4)
Trademark and requirement to indicate the different origin or provenance of the primary ingredient
Evocation of origin-graphical and/or literal-when confined to the trademark alone, is not in itself sufficient to trigger the obligation to indicate the different origin or provenance of the primary ingredient, as opposed to the suggested ‘Made in‘. Thanks to yet another denial of transparency on the label operated by the OPT (Origin Planet Earth) regulation. (5)
‘This Regulation shall not apply (…) to trademarks, registered, where they constitute an indication of origin, pending the adoption of specific rules concerning the application of Article 26(3) to such indications.’ (6)
Nevertheless, if the mark evokes an origin (understood as the country of last substantial processing) other than the actual one, as seen in the preceding paragraph, the country of origin of the product should be specified. And such an indication-e.g., Made in Germany-neither qualifies as a mere indication of the name or company name and address of the responsible operator, nor as a trademark. Therefore, it is not excluded from the rules laid down in Regulation (EU) No. 2018/775, effective 1.1.20. It follows that even in this case, if the origin and provenance of the primary ingredient is different from the origin of the product indicated on the label, it must be specified in turn. (7)
Dario Dongo
Notes
(1) See previous articles https://www.greatitalianfoodtrade.it/etichette/origine-ingrediente-primario, https://www.greatitalianfoodtrade.it/etichette/origine-ingrediente-primario-vincitori-e-vinti, https://www.greatitalianfoodtrade.it/etichette/origine-ingrediente-primario-via-libera-da-bruxelles-all-italian-sounding, https://www.greatitalianfoodtrade.it/etichette/origine-ingrediente-cercasi.
(2) See Regulation (EU) no. 1169/11, Art. 36.2
(3) See reg. EU 1169/11, Article 7.4
(4) See reg. EU 2018/775, Article 1.2. The writer had at the time proposed to several representations of Italian production sectors to appeal to the EU General Court against EU Regulation 2018/775 (OPT, Origin Planet Earth, for excess of power of the European Commission. However, without gathering endorsements, not even from Coldiretti (sic!). See https://www.greatitalianfoodtrade .it/consum-attori/origine-ingrediente-primario-reg-ue-2018-775-call-for-action
(5) See notes 1 and 4 above.
(6) See reg. EU 1169/11, Article 2.2.g
(7) On the application of reg. EU 2018/775, see https://www.foodagriculturerequirements.com/archivio-notizie/domande-e-risposte/origine-materie-prime-reg-ue-2018-775-risponde-l-avvocato-dario-dongo
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
