Geographical Indicators for Foods and Spirits – Europe’s Demands within FTA Negotiations

By David Stewart

28 August 2019

An invitation to a seminar to be held in South Australia on 12 September 2019 entitled “Geographical Indications & the EU-Australia FTA” and delivered by “Delegation of the European Union to Australia” contains the following teaser:

“The European Union is currently negotiating a Free-Trade-Agreement with Australia. Geographical Indications, a form of intellectual property protecting the names of specific products, is a key element of these negotiations. The European Union is asking Australia to extend the protection of these names from wines to spirits and foodstuffs. What will be the implications for Australian producers? Could this be an opportunity for South Australian producers to create such a system to protect their products’ hard earned excellent reputation, similar to what the wine industry has done? What would be the benefits?”

This is remarkable spin. The proposed changes to business practices of Australian food and spirits makers is bound to cause disruption, in the same way negotiations over wine confounded Australian wine makers in the 2000s.

Australia and the European Union commenced negotiations for a free trade agreement (FTA) on 18 June 2018. The European Union is Australia’s second largest trading partner and third largest export destination. The value of annual trade between Australia and the EU is reported to be presently valued at around $109 billion. Through the mechanism of the Australia-European Union FTA, Australia wants to open up markets for Australian products and reduce barriers to trade. As part of the FTA negotiations, the EU has provided a list of geographical indicators which it wants protected in Australia. These demands are non-negotiable.

Included in the list of foods which would be protected geographical indicators in Australia are:

1. Roquefort, for cheese (France);
2. Thym de Provence, for herbs (France);
3. Feta, for cheese (Greece);
4. Gorgonzola, for cheese (Italy);
5. Gruyère, for cheese. This particular geographical indicator is complicated by its application to a French cheese and a Swiss cheese. In this instance the scope of protection applies only to the French variety.

“Edam Holland” and “Gouda Holland” are also on the list. However, the rights accrue only to the combination of the words. There will be no prohibition on using the word “edam” solus. Such use is permitted “as long as they are not used in a way that may deceive or mislead consumers as to the true origin or quality of the product.” Other foods falling into this category include Scotch beef, Scotch lamb, Prosciutto de Parma, Jambon de Bayonne, Camembert de Normandie, Brie de Meaux, and Munchener Bier.

A similar regime applies to a list of spirits. Thus, “Gin de Mahón” does not prevent the use of the word “gin” in respect of spirits. But there are other familiar names of spirits the use of which which are excluded in their entirety:

1. Grappa, for spirits (Italy);
2. Ouzo, for spirits (Greece and Cyprus);
3. Scotch Whiskey, for whiskey (Scotland);
4. Irish Whiskey, for whiskey (Ireland);
5. Cognac, for spirits (France).

There is no word yet on whether Australian geographical indications for food and spirits, such as “King Island Cheese”, “Tasmanian Whiskey”, and “Cone Bay Barramundi” might be reciprocally protected in the EU as part of the FTA.

What happens to “Scotch Whiskey”, “Scotch beef” and other UK geographical indicators if Brexit eventuates is not clear. The Morrison Government’s present commitment to enter into a separate FTA with the UK post-Brexit might mean that geographical indicator protection in Australia are raised again in those negotiations.

The EU also seeks to reopen the door to negotiations on wine, eleven years after that treaty was concluded. As part of the FTA negotiations, the EU has requested protection for the GIs, ‘Prosecco’ and ‘Vittoria’. But these two terms were not included in the 2008 agreement between Australia and the European Community on Trade in Wine. Despite Australian objections to this, the EU is Australian wine industry’s largest export market by volume. There might not be much choice in the matter.

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.