by Anastasiia Kyrylenko
Since early 2020, the world’s eyes and ears have been focused on the SARS-CoV-2 pandemics. First, through the constant exposure to news pieces and (expert) analysis, we all became knowledgeable of basic notions in epidemiology. Later, as vaccines were gradually being elaborated, IP-related notions also start resounding: “patentability of pharmaceuticals” “compulsory licensing”, and, eventually “investor-state disputes”. But now that many of us head into a second lockdown, a topic closer to our hearts (and stomachs) can also be addressed: will the COVID-19 pandemic have an impact on the geographical indications’ law?
In the European Union, geographical indications (also generally referred to as ‘quality schemes’) are regulated by four autonomous acquis acts, one per each category of products eligible for protection: agricultural products and foodstuffs (Regulation (EU) No 1151/2012), wines (Regulation (EU) No 1383/2013), aromatized wines (Regulation (EU) No 251/2014), and spirits (Regulation (EC) No 110/2008). Depending on the depth of the link between a registered name and a given territory, such names are either registered as a Protected Designation of Origin (PDO), or as a Protected Geographical Indication (PGI). The overarching objective behind these quality schemes is to preserve traditional heritage and know-how, which is contained in the processes and methods, used by local farmers across the European Union in the production of food products and alcohol beverages. In this, geographical indications are placed at the heart of the EU’s agricultural policy.
As part of the registration process of PDOs and PGIs, associations of producers shall submit the so-called ‘product specifications’ (Art. 7 of Regulation No 1151/2012), where they minutely lay down the production processes and methods, as well as the geographical area of production. Under Art. 7 of Regulation (EU) No 1151/2012 a product specification shall include the name for the PDO/PGI; a description of the product, including the raw materials; the definition of the geographical area delimited with regard to the link to origin; evidence that the product originates in the defined geographical area; a description of the farming or production method, as well as information concerning packaging and labelling. Essentially, product specifications are rules of production, self-imposed by the associations of producers with the aim of “codifying” the traditional production methods. For instance, the product specifications for the PDO ‘Camembert de Normandie’ set out that this cheese shall be in the shape of a flat cylinder, 10.5 centimeters to 11 centimeters in diameter. The PDO ‘Oignon de Roscoff’ requires that the seeds shall only be planted from March 10 to April 10 every year. The application for registration of a PDO or a PGI, including the product specifications among other documents, undergoes a strict scrutiny by the European Commission before the protection is granted.
After the registration, amendments to product specifications are allowed (Art. 53 of Regulation No 1151/2012), but non-minor amendments undergo a procedure similar to the one foreseen for the initial registration. Non-minor amendments relate to the essential characteristics of the products, alter the origin link of the PDO or the PGI, include a change to its name, affect the defined geographical area of production, or represent an increase in restrictions on trade in the product or its raw materials. These strict registration rules, explains Recital 18 to the Regulation No 1151/2012, are needed to ensure that consumers receive, through the quality schemes, clear information on products with specific characteristics linked to geographical origin. This information enables consumers to make more informed purchasing choices.
At the same time, associations of producers are allowed to introduce temporary amendments to their product specifications (Art. 53(3) of Regulation No 1151/2012), where such temporary changes result from the imposition of obligatory sanitary or phytosanitary measures by local public authorities. Temporary amendments allow association producers to modify the product specification to (temporarily, as its name indicates) put in place more flexible rules. This means that, despite not complying with the original requirements, products, produced under the temporary amendments, will still be eligible to carry the corresponding PDO or PGI. Due to their urgent character, temporary amendments to product specifications are not subject to any formal approval by the Commission and shall only be communicated to the Commission by the corresponding Member State (Art. 6(3) of Delegated Regulation (EU) No 664/2014).
As one may notice, temporary amendments are not something specifically introduced in light of the SARS-CoV-2 pandemics: associations of producers made use of this procedure even before 2020, mostly because of unfavorable weather conditions, which prevented them from performing necessary productions steps following the established schedule. Nevertheless, it was due to the COVID-19 crisis (and the underlying movement restrictions and labour shortages) that a sudden upsurge in temporary amendments to product specifications occurred.
Such temporary amendments were mostly observed in France, Spain, or Italy, countries most affected during the first wave of restrictions, but also traditionally most active in registering PDOs and PGIs and defending the interests of national producers. Examples of granted temporary amendments include the use of frozen instead of freshly milked milk in the Italian PDO ‘Mozzarella di Bufala Campana’, or the authorization to exceptionally congeal the surplus of the Spanish PGI for veal ‘Ternera Gallega’. The previously mentioned French PDO ‘Oignon de Roscoff’ was allowed to push forward the date for planting seeds, as it originally fell at a period with most strict movement restrictions. Some of the temporary amendments were granted only for the duration of the Spring lockdown and were lifted afterwards, while others were extended throughout the 2020, allowing the producers to cope not only with the restrictions themselves, but also with the subsequent slumping of sales caused by the economic crisis.
But is there an immediate relevance of such changes in the production methods for the consumers? The four Regulations on the ‘quality schemes’ do promise the consumers a certain quality of the products, marketed under the PDO/PGI labels. Nevertheless, a closer analysis of the provisions shows that this promise of quality would only concern the geographical origin of the products. As long as the PDO/PGI-protected products are still produced in the originally defined geographical areas, their quality, in the eyes of the EU legislator, remains unaffected.
A different question is whether, from the perspective of the consumers, said temporary amendments to the methods of production had a real impact on the products’ quality, in terms of taste, structure, or other qualities. Now that the products, produced under the Spring lockdown measures, are gradually entering the market, consumers will be able to answer this question by themselves. Voices are heard, especially on the other side of the Atlantic, that the PDO/PGI protection is already excessive enough and eventually leads to market foreclosure. If no noticeable decline in quality is observed, could it be that some of the production rules, self-imposed by the associations of producers, are too strict and have no real impact on the final qualities of the product, while at the same time blocking other local farmers from joining the elite PDO/PGI club? If so, may certain modifications to the current legal regime, either at the level of product specifications, or at the level of protection granted to PDO/PGI-covered products, be thought of?
This entry is based on an earlier essay, “COVID-19 and Geographical Indications: Is the Promise of ‘Quality’ in ‘Quality Schemes’ Undermined?”, which won the AIPPI 2020 Student Essay Prize.
Anastasiia Kyrylenko is a PhD researcher at the Universities of Alicante (Spain) and of Strasbourg (France), dealing with intellectual property provisions in trade agreements, which are negotiated by the European Union. She is also consulting the Ukrainian government on the intellectual property reform, as part of the Reform Support Team at the Ministry for Development of Economy, Trade and Agriculture.