How the war on terroir was won – part 2

*This is the second part of an opinion piece published on 1 December.

Geographical indications (GIs) were also a big factor in the EU’s growing export performance. But the globalisation of the EU’s approach also triggered two unplanned and unintended developments, writes a former top EU trade negotiator.

John Clarke was until October this year the EU’s chief agricultural negotiator and was formerly the EU’s Head of Delegation to the WTO and UN in Geneva. He negotiated the EU-China GI Agreement and several others.

Last week, in the first half of this article, we noted that through a succession of Free Trade Agreements (FTAs) the EU was able to globalise its GI system and policy.

Success in the FTAs – which meant the removal of opposition to GIs around the world – made possible the successful conclusion of a multilateral GI Agreement in the UN agency WIPO – the so-called Geneva Act, in 2018.

Without a wide network of FTAs protecting 44,000 instances of GIs, many belonging to proud third countries, the Geneva Act would have been dead in the water.

As it was, the only resistance to an agreement in the World Intellectual Property Organization (WIPO) that would have been impossible in the WTO ten years earlier, came from the USA and its  Australian ally.

Even the GI-sceptic former head of the WIPO, the (Australian) Francis Gurrie – saw the writing on the wall: GIs are a development-friendly form of IPR in a way that patents are not. If I want the developing world to embrace IPR we start with GIs, a benevolent Trojan horse…

The second consequence is that it made possible the establishment this year of an EU-wide regime for craft and industrial GIs – Solingen knives, Donegal Tweed, Murano Glass, Limoges porcelain – an aim that had eluded the European Commission for a decade due to northern European Member State opposition.

With the UK out, Germany converted, and the Nordics seeing the success of agri GIs in the FTAs (nothing succeeds like success they say), the way was clear in 2022 for the Commission to do for crafts what it had done so well for food and drink.

The CIGI regulation will enter into force next year and apply from 2025. Demand from China and more recently from India for the protection of their handicrafts also gave arguments in favour of setting up an EU-wide system.

Put crudely “unless we protect Chinese silk and Indian brassware we ain’t going to get them to protect Feta, Pruneaux d’Agen or Rioja…” The agreement with China was a model of constructive ambiguity in this respect:  “As and when there is an EU-wide regime for non-agricultural GIs…” we can consider protecting the following Chinese names…”.

Three challenges lie in front of what has in many respects been a massive, and lucrative, success story for Europe’s culinary heritage and food production.

There are, of course, more than three challenges, but my first boss taught me that you should always make three points.

If you make just two people will assume you do not have much to say. If you make four points people will forget some of them.

The first is inflation. Even if the rate of inflation has eased a bit, food prices remain unacceptably high due to COVID-19, the impact of climate change on food productivity, and the Russian invasion of Ukraine.

Shoppers therefore now think twice before buying the typically 50% higher priced GI product, opting for the cheaper cheese or the cheaper prosciutto or the cheaper red wine further down the supermarket shelf.

So I see a risk that in a recession GIs might go the same way as organics – South. An allied risk is that to recoup sales GI producers might be tempted to cut corners on quality to reduce production costs, resulting in a dilution of the very authenticity and quality that is the raison d’être of the GI system.

This would damage the regime in the long term.

The second risk to European and global GIs comes from the American dairy industry, spearheaded by Kraft Foods and a coalition of cheese producers gathered together as the Consortium for Common Food Names (CCFN).

CCFN has for a decade tried to argue that certain cheese names – Feta, Gorgonzola, Pecorino Romano etc – are globally generic, common names, and thus should not be protected anywhere.

This is of course ‘nonsense on stilts’ as Dr Johnson said – in the world of intellectual property rights (IPR) there is no such thing as worldwide genericness – whether a name is generic or protectable has to be judged in each jurisdiction.

If China is deciding to protect Feta in China, the fact that Feta may be a generic term in Wisconsin is totally irrelevant.

CCFN even pretends to the American consumer that nefarious Europe wants to protect names that even in Europe are not protected – like cheddar, camembert and the like. A lot of smoke, mirrors and blue cheese.

The CCFN and its paymaster the US government (USDA gives it close to half a million dollars a year of lobbying money) even tried to persuade WIPO to set up a Common Names Division – a kind of cancerous anti-IPR cell that would make the US pharmaceutical companies – Big Pharma – turn in their graves if they got wind of this attempt to universalise generic names…

CCFN has largely lost what the academic Martin Huysmans once memorably labelled “The War on Terroir”, having lost numerous attempts to assert genericness in governments and courts around the world.

But it still fights on fruitlessly and sporadically, reminiscent of those Japanese soldiers in the jungle who are still fighting four decades after World War 2 was over.

I have publicly called on CCFN to step out of the jungle, surrender and throw down their arms! The war is over.

The third challenge to European GIs is sustainability.

European consumers, and increasingly consumers outside Europe, want sustainable products. They care about the social and environmental footprint of the food they buy. And the EU as part of the Green Deal, its target of carbon neutrality by 2050 and its reform of food systems, is introducing a whole suite of sustainability rules that will affect food production.

But are the production methods of GIs inherently more sustainable than otherwise comparable non-GI products?

In terms of the economic pillar and farmers’ well-being and incomes arguably yes. But maybe the buck stops here.

Are GI production methods more animal welfare friendly? More environmentally friendly? Do they use fewer antibiotics or herbicides? Do they produce fewer GHG emissions than non-GI equivalents?

Are GI charcuterie or spirits less carcinogenic than non-GIs? Arguably yes too? The case is yet to be made.

We see the GI community getting nervous about the impact it of the future raft of EU sustainability legislation, packaging and labelling, and their role in it.

A risk I see is if the GI groups seek exemptions or opt-outs from sustainability legislation and claims, based on their unique qualities.

That may not impress the consumer for whom sustainability is key. Damned if they do, damned if they don’t one might say.

But that battle is not for today, but more for 2025 and later when sustainability legislation comes before the next European Commission and Parliament.

Until then, I expect that the GI community can look forward to a few more years of strong and enforceable protection around the world, a few more FTAs will be bagged, and the sector can toast itself with cheers, chin chin, prost and slàinte!

And say “hard cheese”  to its rivals across the pond…