Geographical Indications, Food Safety, and S ustainability Challenges and

School of Economics
 
Boston College Law School
 
 
Faculty of Law
Higher School of

Economics
Moscow
February 13, 2017

and

Non-GI label indications of quality, safety, or sustainability such as

“organic,” “GMO-free,” and “sustainably produced.”

various sources of policy and law that apply to them;

and

Compare their treatment in various contexts, including TTIP and other free trade agreements.

on the Protection of Geographical Indications and Designations of Origin

for Agricultural Products and Foodstuffs, 1992 O.J. Eur. Comm. (No. L 208) 1-8.

Through

European Parliament and Council (2012). Regulation (EU) No 1151/2012 on Quality Schemesfor Agricultural Products and Foodstuffs, 2012 O.J. Eur. Comm. (No. L 343) 1-29.

Whiskey
Roquefort and Parmigiano Reggiano (not Parmesan!) Cheeses
Teruel and Parma hams
Balsamico

di Modena
Feta

d’un village. Ensemble des terres d’une région, considérées du point

du vue de leurs aptitudes agricoles et fournissant un ou plusiers products caractéristiques, par exemple un vin.

English Translation: terroir
Russian Translation: терруар

In other words, untranslatable … of course not, then it wouldn’t be French!

127 for other products)

Italy: 420 GIs (300 for wines and

spirits and 120 on other products)

Spain: 123 GIs

United Kingdom has a total of 65 products with protected status

Databases at http://ec.europa.eu/agriculture/quality_en
More than 3000 total products in EU at last check

Vigor of protection comes from protection throughout the single market

(PDO):


Protected Geographical Indication (PGI):



Traditional Specialty Guaranteed (TSG):

of Origin and their International Registration (1958)

As revised at Stockholm

on 14 July 1967, and as amended on 28 September 1979, 923 U.N.T.S. 189

And 21 May 2015
http://www.wipo.int/edocs/mdocs/geoind/en/li_dc/li_19.pdf
(Geneva Act of Lisbon Agreement on Appellations of Origin and Geographical Indications

geographic indications in the same way, incompatibility of municipal legal

systems

E.g. U.S. recognizes as trademarks, if at all (largely certification marks)

Many potential GIs have become generic and therefore cannot be protected as trademarks (e.g., “Parmesan” cheese)

Lisbon Convention: 25 parties (including 7 EU member states)

Geneva Act (11 signatories)

Approximately 1000 registrations

membership in 2012


Article 1516 of the Civil Code authorizes registration

and recognition
of “appellations of origin” («наименование места происхождения товаров»)
with Rospatent



As of January 2016, 154 registered with Rospatent
(WTO Russian Federation Trade Policy Review 2016)
 
 

of Russian law with TRIPs
Need to broaden Russian definition to

extend to
cover international meaning of “geographical indication”
 
Need to broaden authorization for registration commensurately
(Soloveva, HSE 2016)
 
Bilateral agreement with Switzerland 2011, protects Swiss watches,
chocolate, Gruyère cheese, etc.
 
Russian vodka, caviar and Sibirskie Pelmeni protected in Switzerland
 
Anecdotal reports of reluctance to register Appellation of Origin of Goods
(AOG) of foreign origin, e.g. Scotch whiskey
 

trade in commodies that might otherwise be non-tradeable

Prevents infringement through

WTO dispute settlement procedures

on copyright, 172 parties)

Russia, U.S. not parties

Trade-Related Aspects of Intellectual Property Rights (TRIPS):

Patents (e.g. reciprocal recognition

e.g., for pharmaceuticals)

Trademarks (e.g. Starbucks)

Copyright (especially films)

Solution to the Problem of Harmonization, among other things:

WTO agreements, establishes affirmative obligations for members to enact identified

legal protections for intellectual property.
 
Reifies intellectual property, such as creative products like motion pictures, by creating goods that can be identified as such in international trade.

Other provisions in trade agreements are typically “negative,” constrain governmental behavior.

TRIPS treats GIs as intellectual property requiring affirmative governmental protection and mutual recognition.  

22, which defines a standard level of protection. This says

geographical indications have to be protected in order to avoid misleading the public and to prevent unfair competition.

Article 23 provides a higher or enhanced level of protection for geographical indications for wines and spirits: subject to a number of exceptions, they have to be protected even if misuse would not cause the public to be misled.

Exceptions (Article 24). In some cases, geographical indications do not have to be protected or the protection can be limited. Among the exceptions that the agreement allows are: when a name has become the common (or “generic”) term (for example, “cheddar” now refers to a particular type of cheese not necessarily made in Cheddar, in the UK), and when a term has already been registered as a trademark.

Source: wto.org

of the higher level of protection found in article 23 beyond

wines and spirits to other products as cheeses and dried meats.

law protects “geographical indications.”
 

U.S. law allows producers to protect GIs

as trademarks.


Nonetheless, many EU GIs are not protected in the United States, and may not be registerable as trademarks because of their widespread generic use.


Products can be sold in the United States which use GIs protected in Europe, but which were not produced in that region.


E.g., “Parmigiano Reggiano” under the EU system, “Parmesan” cheese produced in the United States is regularly sold there.

fact sheet):
 
“The protection of geographical indications matters economically and culturally.”

“Create

value for local communities through products that are deeply rooted in tradition, culture and geography.”

“Support rural development and promote new job opportunities in production, processing and other related services.”

“Geographical names with commercial value are exposed to misuse and counterfeiting.”

“Abuse of geographical indications limits access to certain markets and undermines consumer loyalty.”

“Fraudulent use of geographical indications hurts both producers and consumers.”

free trade agreements (FTAs) to persuade its trading partners to

impose barriers to U.S. exports under the guise of protection for its geographical indications.” . . .
 
“EU seeks to . . . impair U.S. competition by imposing restrictions on the use of common food names through TTIP.”
 
Protection of GIs operate as “a barrier to . . . trade and competition.”

EU seeking in TTIP seeking “gratuitous use of GIs as a protectionist measure.”

system in several important ways.”

“These include: protecting an agreed list

of EU GIs, with rules to stop other producers misusing them; [and]
 
“Enforcing those rules effectively.”


Source: europa.eu EU public negotiation position in Transatlantic Trade and Investment Partnership

of other indications of quality
 
Laboratory tests conducted on French wines

detected  residues of an insecticide (bromopropylate) and a fungicide (carbendazim) prohibited in France.
 
Emmanuel Giboulot, produces organic wines in Burgundy under the appellations “Côte de Beaune” and “Haute Côte de Nuits,” convicted for refusal to spray grapes with pesticides.

 

of 2006:
 
Evaluated 218 pesticides, establishing 2,930 maximum residue limitations,
 
Published

1,112 food additive provisions for 292 substances

intergovernmental organization
 
Work product:

Voluntary standards
 
Adopted by consensus
 
Nonbinding, advisory
 
22000 series “auditable” (subject

to verification by accredited private, third-party auditors or certifiers)

exporters about operation as trade barriers, but not disciplined under

trade agreements.

of excessively rigorous standards as trade barriers (negative obligations)
 
E.g., WTO

Agreement on the Application of Sanitary and Phytosanitary Standards

Codex Standards

Transformed from floor to ceiling

Operate as both sword and shield.

Stricter standards subjected to scientific tests
 
WTO disputes
 
EU beef hormones
 
EU biotech
 

Organically produced; 

Sustainably produced;

Natural or all-natural;
 
GMO-free;
 
Antibiotic-free;

Hormone-free or no hormones added;

Free-range

or cage-free;

Grass-fed or pasture-raised; and

Humane raised and/or handled

Codex:
 
Nutrition Labeling (mandatory to governmentally-established standards);

Organically produced foods (optional to

governmentally-established standards)

GMOs (optional)

for abuse
 
E.g., Uruguay Round Agreement on Technical Barriers to Trade
 
Requires

use of “relevant international standards,” e.g., Codex, ISO
 
Departures allowed, but only when international standard “would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued.”
 
All labels litigated in WTO held inconsistent with TBT:
 
EU Sardines (violates Codex standard)
 
U.S. tuna (violates national treatment standard)

U.S. meat (violates national treatment standard)

Comparison of international legal standards for GIs, food safety standards,

and non-GI claims of food quality

protection under TRIPS
 
GIs not necessarily correlated with food safety (French

wines) or other indications of quality (M. Giboulot)

But GIs typically include not just geographical origin but also production methods which are protected

Trade agreements restrict domestic use of food safety and labelling

Trade agreements also restrict use of process and production methods (e.g., TBT tuna labeling dispute)

Only distinguishing feature of GIs is location of production (terroir)

If we give the highest trade-based protection to GIs, then

Maybe food safety standards and other label indications of quality deserve some trade-based measure of affirmative protection and mutual recognition . . .

And, contrary to received wisdom about trade agreements, GIs demonstrate that affirmative protection for food safety standards and other label indications of quality are consistent with structure of trade agreements.