December 12, 2019

Are you a NZ food producer? Read on for changes that may affect you.

The Ministry of Foreign Affairs and Trade (MFAT) has released a discussion paper on the EU’s proposals for the extension of the geographical indication (GI) protections it wants to see in NZ, as part of the proposed EU-NZ FTA (European Union- New Zealand Free Trade Agreement).

The system proposed by the EU would have a significant negative impact on the NZ administration of the GI system, and on NZ food producers.

MFAT is seeking comment on these proposals, so it can understand how to respond in the FTA negotiations. In my view, NZ food producers would want to see significant benefits through the FTA for any system that resembles that proposed by the EU to be worth it for NZ.

EU proposal features

  • The GI protection regime will be extended to foodstuffs. Our current GI system only covers wine and spirits. There are good arguments for the system being extended to cover food but doing so will mean the extent of protection given to EU GIs becomes much more important.
  • Extending to food will mean that cheese can be protected. We know from prior releases about the GI regime that the EU will be looking to protect many common cheese names [see our previous article on the list of names the EU is seeking protection for]. The EU is proposing that common names for animal breeds and plant varieties will not be able to be protected, but there is no proposed exclusion for names that are in common use in NZ already. For example, even though gruyere is commonly used to describe a cheese style in NZ now, if it's protected under the EU proposals, it will no longer be able to be used in relation to NZ cheeses.
  • The EU proposes that no fees will be payable for any GIs protected through the agreement. It currently costs $5000 to apply for a GI in NZ. That price was set to reflect the administrative cost to the government in administering there regime. With an influx of GI registrations from the EU those costs would reduce (as they’d be split across all registrations), but if no fees are paid by the EU GI owners there would be a significant financial burden on the government to manage these. Having a fee would seem like a really good way of weeding out some GIs who don’t actually care about getting protection in NZ.
  • It proposes a very wide scope of protection to be given to GIs. Under the EU proposal, it would not only stop use of a registered GI on the same kind of product that is not from the particular geographic region. It would also stop use on other kinds of products if that drew on the ‘reputation’ of the GI. Very importantly for NZ producers it would also stop use that ‘imitates’ or ‘evokes’the GI. This will be very tricky for NZ producers to navigate. For e.g., Parmigiano Reggiano is on the list of GIs the EU is seeking to have protected. If the imitation and evocation scope is included, then producers may not be able to call their cheese ‘parmesan’ without challenge and possible infringement. This might be the case even though the name used in no way misleads any consumer about the product.
  • Further,the breadth of protection proposed is that the GIs will not be able to be used even if the user makes the true nature of the product very clear. This means that if a NZ producer wants to call their NZ hard cheese ‘parmesan’ (or possibly even ‘parmesan-style’), and makes very clear to any consumer or potential consumer that it is a NZ cheese and not one from the Reggiano region of Italy, it could still infringe the GI.
  • The GI could also not be used to identify an ingredient. So even if the arancini balls I have made and are marketing include genuine Parmigiano Reggiano, I will not be allowed to use that name in the ingredients list or on the packaging (because it would be use in relation to the arancini balls, not cheese).
  • It proposes that instead of a GI owner having to take enforcement action for any infringement through the courts (as happens with every other IP right), an administrative enforcement action should be provided, where a public authority prosecutes that infringement. This would be an extraordinary step, and could result in the policing of GIs in NZ despite the owner having little to no commercial interest in NZ (forcing an owner to pay for taking legal action ensures they have some ‘skin in the game’ that means that any action has some economic justification). It would also be a large administrative cost to the NZ government.

Submission deadline: 27 March 2020

It appears that the EU is making a significant push in the FTA negotiations in relation to GIs, which would have a big impact on NZ food producers.

MFAT is calling for submissions on these proposals, which are due by 27 March 2020.

Discussion paper download

Get in touch for further information or help in drafting any submissions.

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