BriffaWay – What has the EU ever done for IP? Chapter 2

Written by Margaret Briffa | November 6, 2018

Intellectual Property

By the end of the 18th century, the Cornish pasty had established itself as the staple diet of working men across Cornwall. This pre-Tupperware quick fix for lunch was enjoyed by tin miners and farm workers as it was easily transported and agreeably filling. Towards the end of the 19th century the words ‘I’ll just get a couple of those Iceland Cornish pasties out of the freezer for tea’ struck fear and dread into the heart of any right-thinking teenager. It is inconceivable that a working Cornish man could have survived the day on the item at Iceland that came labelled as Cornish pasty. The Cornish pasty of my memory is two sheets of pastry stuck together by a smear of brown goop.

Rather than commit this 1970’s throwback to the dustbin of food misadventure it seems that some folk must actually enjoy the odd Cornish pastry. I say this because in my quest to find out what the brown goop could possibly have been, I was spoilt for choice as to the recipes. Did I want a Jamie Oliver Cornish Pasty recipe, a Paul Hollywood one or one made according to The Hairy Bikers recipe? And that I think is the point. When people say Cornish pasty, they are describing a type of pasty to be avoided or hunted down depending on your persuasion and nothing more. But no. That was before the UK food producers cottoned on to the fact that it is possible under EU law for the name of a product with specific qualities, as a result of its geographical origin, to be given indefinite protection against imitation elsewhere in the EU. Today Cornish pasties enjoy Protected Geographical Indication status alongside traditional Welsh Perry and Blue Stilton Cheese. This protection is only available to foodstuff or product that have a reputation, characteristics or quality as a result of their production, processing or preparation in a particular geographical area. Cornish Clotted Cream that other contributor to coronary heart disease everywhere enjoys an even higher accolade of PDO (Protected Designation of Origin) where all three stages (production, processing and preparation) must take place in the designated area and the foodstuff or product must be made using distinct local knowledge.

There are 69 protected products in the UK currently and this is of course nothing compared to the number protected in those lands whose gastronomy is a matter of national pride such as France and Italy. France has almost 250 and Italy almost 300 protected products. The French also have and Comité Interprofessionnel du vin de Champagne who did not hesitate to take action against the German retailer Aldi to prevents it selling Champagne Sorbet in the run up to Christmas 2012.

If you are starting to think that PDO’s and PGI’s are a protection too far then you are not alone. That is before one even knows that two iconic Italian delicacies Parma Ham and Prosciutto di San Daniele are under investigation for fraud. These cases raise critical questions as to whether the EU is effectively policing the system. After months of investigations, prosecutors pieced together evidence to show that breeders and owners of slaughterhouses imported high-quality pig sperm called Danish Duroc from outside Italy to breed leaner swine. In flagrant breach of EU rules on the protected status of the famous hams which provide that male pigs must be of purely Italian bloodstock, Italians are using foreign sperm to breed a pig that gives leaner meat to get more ham out of each pig and boosting profit.

Rules only work of course where producers play by them and they are effectively policed and there is some serious doubt as to whether this is the case. Is it OK for Italian producers to cheat and break rules on geo-indicators and at the same time sue Asda for selling Parma ham sliced outside of the approved region or is that a bit of a cheek?

The scandal has some similarities to the Volkswagen crisis, where the car industry was accused of becoming too close to testing authorities. In this case, the ham producers also have close ties to the certifying authorities. Both the Parma Ham Consortium and Prosciutto di San Daniele Consortium hold stakes in the control bodies overseeing them.

It is no surprise that the European Commission has called on the UK to guarantee the protection of food products labelled with the EU’s geographical indications after Brexit. Protected products under the EU regime were sold for 1.55 times the price of similar unprotected items. EU producers have a lot to lose if their status is not recognised in the UK.

The move is the latest in a series of efforts by Brussels to assert its food quality schemes around the world and ensure EU producers do not face what they see as unfair competition. Here in the UK we have no domestic legislation that deals with protected geographical status. This whole area of protectionism is an EU invention.

The European Commission has proposed that products with geographical status registered under European law at the date of Brexit should continue to enjoy protection in both the EU and the UK markets, at minimal cost or inconvenience to the registered holder(s). This will require a reciprocal agreement, alongside the many other issues needing to be settled as part of the “future relationship” talks. On this one however EU producers stand to gain so much more than UK producers. If this is agreed let’s hope we get something real tasty in return.

Written by Margaret Briffa

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