The European Parliament approved in first reading on May 31, 2023, the proposed regulation on ‘EU Geographical Indications and Quality Schemes’ to reform the rules on PDOs, PGIs and TSGs. (1)
The scope of the new regulation extends to wines and spirits, amending reg. EU 1308/2013 (Single CMO) and reg. EU 2019/787(spirit drinks), in addition to replacing reg. EU 1151/2012.
1) Geographical Indications (GIs), premise.
Geographical Indications (GIs) can identify traditional food products (at least 30 years old) linked to territories. The European Economic Community has introduced an exclusive regime for the protection of Geographical Indications, beginning with reg. EEC 2081, 2082/1992, which has in some respects similar effects to intellectual property rights. To apply today in the EU and countries that have mutual recognition agreements with it for some among their respective Geographical Indications. They are distinguished into:
- PDO (Protected Designation of Origin), or AOP (Appellation d’Origine Protégée), or PDO (Protected Designation of Origin). Identifies traditional products whose characteristics, quality and production steps are entirely related to the place or region (or in special cases the country of origin),
- PGI (Protected Geographical Indication, Indication Géographique protégée), or P GI(Protected Geographical Indication). Distinguishes products that exhibit at least one of the stages of production (not all, as with PDOs), as well as quality, reputation, or other characteristics attributable to the place, region, or country of origin (new EU Regulation on, Articles 37 and 48),
- TSG (Traditional Speciality Guaranteed, Spécialité Traditionnelle Garanti), or TSG (Traditional Speciality Guaranteed)
includes those preparations recognized and protected by the EU, the special features of which depend on a traditional product composition, typical recipe or traditional production method (Art. 54).
2) Enhanced protection
The European register of Geographical Indications today includes about 3,500 registered names, whose sales have an annual value of about 80 billion euros. The European policy review highlighted the effectiveness of Geographical Indications in pursuing their objectives, while also identifying some areas for improvement. With particular regard to trademark protection, which is therefore strengthened against:
(a) any direct or indirect commercial use of the geographical indication, online and offline, for products that are not the subject of registration, where such products are comparable to the products registered under that name or where the use of such name exploits, weakens, disempowers or otherwise damages the reputation of the protected name,
(b) any usurpation, counterfeit, imitation, or evocation, even if the true origin of the goods or services is indicated or if the protected name is a translation or transcription or transliteration or is accompanied by expressions such as ‘kind,’ ‘type,’ ‘method,’ ‘in the manner,’ ‘imitation,’ ‘taste,’ ‘like,’ or the like, even if the product is used as an ingredient,
(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product used on the packaging or packaging, in advertising material, documents or information provided on websites or domain names relating to the product in question, as well as the use, for packaging, of containers that may mislead as to its origin,
(d) any other practice that may mislead the consumer about the true origin of the product’. (new Art. 27).
2.1) Evocations of Geographical Indications and their use as ingredients in other products
Evocations of Geographical Indications also occur when ‘any aspect of the labeling or packaging suggests to even the reasonably observant consumer a direct link of the product‘ with one of the protected Geographical Indications, ‘exploiting or damaging the reputation of the name‘ (Article 27.2).
The reputation of PDO and PGI products can no longer be unduly exploited even in processed products. The name of the protected product may be displayed on the label, outside the ingredient list, only upon agreement with a majority of the members of a producers’ association (Art. 28). As, moreover, is already planned in Italy (2,3).
2.2) Online protection and promotion
The above protections also apply to products sold at a distance, online and through ecommerce. With prohibition for entities not belonging to a protection consortium to use (in the EU) web domains that refer to Geographical Indications (Art. 27.3). Even so, it is hoped to facilitate digitization where in Italy, the first country by number of Geographical Indications in the EU, 39 percent of protection consortia lack a website (2019 data). (4)
3) Producer associations
Recognized producer associations will be able to submit new applications for registration of Geographical Indications, draft specifications and any amendments, perform internal audits, and act on behalf of all producers. So also protect geographical indication and intellectual property rights by prohibiting third parties from introducing ‘imitation’ products into the European market (Article 32).
3.1) Governance
The new rules should not discriminate against micro-enterprises or small and medium-sized enterprises (Article 8.4.a). Nonetheless:
- ‘member states may establish rules to ensure that for each geographical indication can operate a single producer group representing the majority of producers and that the producer group membership and the contribution to the expenses associated with the exercise of the producer group’s powers and the fulfillment of its responsibilities be mandatory for all producers‘ (new Art. 32.1). (5)
- (those in charge) ‘producer associations may take measures to enhance the value of products and, if necessary, take measures to prevent or counteract any measures or business practice that is, or is likely to be, detrimental to the image and value of their products, including devaluing marketing practices and reducing the prices‘ (Article 32.2.ea). With good peace to freedom of enterprise and the rules protecting competition in the EU market.
4) Socio-environmental sustainability
The social and environmental sustainability of agricultural production is one of the specific objectives that the Union says it will also pursue through the Geographical Indications scheme, in line with the Green Deal and the Farm to Fork strategy. The European Parliament adds that GIs supply chains ‘can‘, without any obligation, also play an important role in the development of the circular economy.
‘The collective organization of the producers of a geographical indication can better ensure a fair distribution of the value added amongst the actors in the supply chain, to provide a fair income to producers, which covers their costs and allows them to invest further in the quality and sustainability of their products‘ (Recital 9).
4.1) Commitments on sustainability
Producer groups can therefore agree on environmental, socio-economic and animal welfare sustainability commitments (including reductions in the use of pesticides, herbicides, antibiotics) that go beyond legal duties and best practices, include them in specifications and ‘sustainability reports. The European Commission in turn may establish implementing rules in these regards (Art. 12, 12a).
Agroecology is referred to by the European Parliament as a useful strategy, among other things, to help combat climate change (Art. 12). And since investment in this may be too burdensome, appropriate funding will have to be arranged. Producers will need to be informed about the opportunities that the ecological transition can bring, in order to share its added value with consumers(recital 12).
5) Registration process, from member states to the global level.
Member states once again become the real players in the Geographical Indications registration process. Under the banner of ‘simplification,’ the new regulation in fact stipulates that:
- producer groups submit an application for registration of a new PDO, PGI or TSG to the member state,
- the member state evaluates the application and opens a national opposition procedure, in fact similar to the trademark registration procedure. And assuming a favorable outcome, the state itself submits the application to the European Commission,
- the Commission in turn examines the application and opens the opposition procedure, in this case, however, at the global level. In fact, it will be recalled, the European Union decided in 2019 to accede to the 1958Lisbon Agreement and thus subordinate Geographical Indications to the superior regime of international trademarks. (6)
During the latter stage and until the final decision is made, member states may grant transitional protection to the product at the national level without hindering the domestic market or international trade (Title II, Chapter II).
5.1) Geographical Indications and Trademarks
Excluded from registration as Geographical Indications are names whose registration, ‘because ofthe reputation and renown of a trademark,’ could ‘mislead the consumer as to the true identity of the product‘ (Art. 31).
‘The registration of a trademark commercial use of which would violate Article 27 [see supra, para. 2] is rejected-or otherwise invalidated by the EUIPO and/or relevant national authorities- ‘If the application for registration of the trademark is filed after the date of submission of the application for registration of the geographical indication to the Commission‘ (Art. 35).
‘Registered trademarks of Geographical Indications have an asset value that can be determined after a clear and objective analysis by an independent third party. This value can be included in the annual budget of both producer groups and individual producers‘(Recital 31.a).
6) PDO products of animal origin, local provenance of feed.
PDO products of animal origin must use feed that ‘comes entirely from the defined geographical area’. Unless ‘it is not technically possible to guarantee integral provenance from the defined geographical area,’ in which case it is ‘may add feed that does not originate from that area, provided that the quality or characteristics of the product due essentially to the geographical environment are not compromised. Feed that is not from the defined geographical area may not exceed 50 percent dry matter on an annual basis‘ (Article 50).
7) Labeling. Manufacturer’s name and origin of ingredients
The producer’s name must appear on the label of products bearing Geographical Indications in the same visual field as the respective EU logo (the display of which, however, is not mandatory on wines and spirits). A major step forward that will enable consumers to identify individual producers-and thus appreciate (or not) their quality-even on products marketed under retail brands(private labels).
The origin of the primary (i.e., significant, >50% in the recipe, or characterizing) ingredients must be stated on the label, where different from the country where the PGI or TSG is registered (Art. 37.2). But the deception is perpetuated as such ‘news’ may be offered:
- In the same very generic manner as established in reg. EU 2018/775 (which includes the formula ‘Planet Earth Origin‘, ‘EU and non-EU’), and yet
- without any requirement for font size or positioning in the same field of view as the Geographical Indications (as at least stipulated in EU reg. 2018/775). (7)
7) Traditional Specialties Guaranteed (TSG)
TSGs are in fact C-series Geographical Indications , since they are not tied to the territory in the production process but only in the recipe or mode of preparation (e.g., ‘mozzarella,’ the most useless of TSGs). In contrast to PDOs where every stage of production–starting with agricultural raw materials, with some guilty exceptions on feed (8)–must be located in the identified area.
Thirty years of failure should have been enough to end this experience that did not add any value. But Europe insists, with a further simplification of the registration procedure. It will also no longer be necessary to demonstrate in the specification the specificity of the product through its physical, chemical, microbiological or organoleptic characteristics (Title III, Chapter 1).
8) Official checks
In line with the case law of the EU Court of Justice in the Parmesan case, (9) the European Parliament calls for ‘
each member state
shall take appropriate administrative and judicial measures to prevent or stop the unlawful use of protected designations of origin and protected geographical indications produced or marketed in that member state.
To this end, member states shall designate the authorities responsible for taking such measures in accordance with the procedures established by each member state. These authorities provide adequate guarantees of objectivity and impartiality and have the qualified staff and resources necessary to carry out their duties‘.
‘Member States shall assist each other for the purpose of carrying out the controls and enforcement activities under this chapter in accordance with Regulation (EU) 2017/625‘ (Article 44).
9) Optional quality indications
The new regulation confirms the possibility for member states to maintain optional quality schemes within the national space and the optional indication ‘mountain product‘ for products whose raw materials, animal feed and processing stages, except in rare justified cases, take place in mountainous areas. (10)
‘A new optional quality term ‘farmer‘s product‘ should be introduced to provide consumers with information on a specific product characteristic. Member states should establish the criteria that a product must meet in order to use‘ such ‘optional quality wording‘ (recital 53.a). (11)
8) Next steps
The text approved by the European Parliament on May 31, 2023, is forwarded to the Council and the Commission to finalize an agreement in trilogue (i.e., agreement between the three institutions). The final compromise text could then return to Strasbourg at the October 2023 plenary session, with possible entry into force of the new regulation in January 2024.
Dario Dongo and Alessandra Mei
Notes
(1) Proposal for a Regulation of the European Parliament and of the Council on European Union geographical indications for wines, spirit drinks and agricultural products and on agricultural product quality schemes:
- The European Commission’s proposal https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0134R%2801%29&qid=1685882238445 (COM/2022/134 final/2)
- Amendments adopted by the European Parliament, June 1, 2023, on first reading https://www.europarl.europa.eu/doceo/document/TA-9-2023-0210_EN.pdf
(2) Dario Dongo. PDO and PGI ingredients on labels and advertising of other products, MiPAAFT clarifications. FARE (Food and Agriculture Requirements). 7.5.19
(3) The reference to a PDO (e.g., champagne) on the label of a different product containing it (e.g., sorbet) will no longer be allowed without the consent of the protection consortium. V. Dario Dongo. DOP ingredients. GIFT(Great Italian Food Trade). 2.1.18
(4) Marta Strinati, Dario Dongo. DOP and IGP, 1 in 3 does not have a website. GIFT (Great Italian Food Trade). 9.1.2019
(5) Coldiretti, through rapporteur Paolo De Castro, thus reintroduces here the oligarchic approach already adopted in Italy to dominate the organic supply chain. See section ‘Rules, contributions and dictatorship‘ in the previous article by Dario Dongo. Italian organic, Coldiretti’s tailor-made bill in Senate vote. #Clean Spades. GIFT(Great Italian Food Trade). 18.5.21
(6) Dario Dongo. Protecting geographical indications, the EU towards the Geneva Act. GIFT(Great Italian Food Trade). 3.4.19
(7) Ways of indicating the origin of the primary ingredient on the label. Lawyer Dario Dongo answers.. FARE (Food and Agriculture Requirements). 6.5.23
(8) Dario Dongo. The crimes of the Amazon in our PDOs. GIFT (Great Italian Food Trade). 15.7.19
(9) EUCJ, case C-132/05, judgment 26.2.08. V. Dario Dongo. Cambozola, letter from Great Italian Food Trade to the German government. 9.7.15
(10) Dario Dongo, Giulia Torre. Mountain product, here’s the brand. GIFT (Great Italian Food Trade). 27.8.18
(11) The term ‘farmer’s product’ could be worthwhile to supplement the voluntary information for PDO and PGI extra virgin olive oils, which today does not allow artisanal products to be distinguished. V. Dario Dongo, Giulia Pietrollini. Marketing of olive oils, reg. EU 2022/2104. GIFT (Great Italian Food Trade). 20.11.22
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in Law from the University of Bologna, she attended the Master in Food Law at the same University. You participate in the WIISE srl benefit team by dedicating yourself to European and international research and innovation projects.
