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Protected Food Name status and Brexit: the considerations and implications

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brexit-1481028_1920Today on IPcopy we have a guest post from Nicola McNeely of Capital Law. This post has been reproduced with the permission of the author.

The European Protected Food Name (EUPFN) Scheme provides important protection to many household brands across the UK, including several in Wales. Post Brexit, there will be some negotiating to do to ensure that this protection is upheld – and that it continues to be available. But why is EUPFN status is so important – and why does it need to be firmly on the negotiating agenda for Wales? 

Many regional food products around the UK and Europe are protected under the European Protected Food Name (EUPFN) Scheme. Introduced predominantly to protect food and drink products on a geographical or recipe basis, EUPFN provides significant benefits to those involved in the product – from manufacturing to distribution to selling.

Brexit means that this protection – both for existing designations and future ones – could be under threat for some much-valued Welsh brands.

Essentially, all PFN legislation is EU regulated. EU regulations aren’t translated into EU law – EU member states simply apply these directives to our own laws, which is why they can differ country to country. If a complete Brexit means we divorce ourselves from the ability to use directives from EU law, it raises questions about the continuity of PFN.

There are three types of EUPFN categories, and each one has a slightly different meaning – affording different protection and regulation:

  • Protected Designation of Origin (PDO)
    • All aspects of production including sourcing of the materials, must take place in the geographical area. The product is produced, processed and prepared in a specific area.
  • Protected Geographical Indication (PGI)
    • Some elements of production and/or sourcing of the raw materials can take place outside the geographical area. The product can be produced or processed or prepared in a specific area.
  • Traditional Speciality Guaranteed (TSG)
    • The product is made to a traditional recipe or production method but is not linked to a specific area.

Some of the Wales’ most well-known household brands are protected by EUPFN status. Anglesey Sea Salt (Halen Môn), for example, benefits from PDO. Similarly, Pembrokeshire Early Potatoes and Welsh beef and lamb are registered as PGI.

It is important to uphold and continue EUPFN, in whatever capacity that may be post-Brexit, for two key reasons.

Firstly, EUPFN status affords legal protection against misuse, imitation and fraud to any products covered by it. So, for example, a manufacturer wouldn’t be able to produce Welsh lamb – and market it as such – unless it complied with the specific regulations that the product is moderated by. From a financial perspective, this means that producers of an original product have a monopoly over it if they have a designated PFN. European products like Parma ham, for example, or Champagne, can’t be labelled and sold under those names, unless they fulfil the necessary criteria.

Secondly, EUPFN status underlines and highlights the provenance of certain products. For Wales, there is a huge benefit to the local tourism industry that goes hand in hand with the increased brand awareness of Welsh provenance as a result of EUPFN products.

Having worked on PFN’s in both the Welsh Development Agency and Welsh Government, Jon Parker (now Director of development company, CamNesa), explains his experience of how PFN’s have benefited Welsh produce:

‘Following the early designations for Welsh Lamb and Welsh Beef to PGI status, we have continued to add to these with notable products such as Pembrokeshire Early Potatoes, Halen Mon – Anglesey Sea Salt and, most recently, Carmarthen Ham. There have been clear financial and promotional benefits to designation of Welsh products, as well as the protection afforded to product imitation.’

When asked about the importance of Halen Môn’s PDO, co-founder Alison Lea-Wilson, said ‘We sought PDO status for our product not only to provide protection to our sea salt and brand, but to underline the provenance of the product of which we are extremely proud. The uncertainty of Brexit means that while we still have our trade mark for Halen Mon, the retraction of PDO as a mark recognised in so many target markets would be huge loss.’

Welsh Lamb and Beef PGI designations are important to the industry supply chain, both from a financial export perspective, and the prestige that association with fresh, local produce affords.

Simon James, Managing Director at Edwards of Conwy, said, ‘We have used the PGI status of Welsh Lamb and Beef throughout our product range, within both our Conwy butchers shop and our retail product range. We’ve found that consumers have grown to recognise and understand the value of the status over the years and is an important indicator of provenance for our products.

The problem, then, in the current post-Brexit uncertainty, is the question of how a UK exit from the EU could affect We;sh products – both current and future – that have, or seek, PFN status.

In Brexit talks, several things must be considered with regard to PFNs.

Firstly, we need to think about those products that currently have existing PFN status. Under the current law, PFN status is infinite. The protection goes on indefinitely once it’s been granted by the EU, although it must be inspected at least once every 3 years by a nominated inspection body. How will this protection continue if the UK departs from the EU – or will/can designations be withdrawn?

Secondly, we need to consider the potential implications for future PFN products. As the Wales is still part of the EU along with the rest of the UK, those wishing to can still apply for PFN. But, as the process takes four years to complete, many may be wondering if it is worth putting the money behind something that could be uncertain in the future.’

‘It will need to be decided to what extent will the UK be eligible to apply for PFN if it is no longer part of the EU.

One PFN that has come from outside the EU is Colombian Coffee. This is an interesting example, and one that could be considered a benchmark for future UK based PFNs. Colombia and the EU have a reciprocal agreement with regard to the protection of products – which could be an interesting position to take post Brexit. However, in this case, the application took 5 years to go through, which suggests there would need to be some significant negotiation on both sides.’

There are many benefits to PFN – for manufacturers, distributers and the local economies involved. We must work to ensure that this protection and system is not lost on the UK’s exit from the EU. We need to ensure that PFN policy and regulation is not overlooked in Brexit negotiations, and that it remains at the forefront of discussion, given the high value of the commodities involved – both financially and provincially.

While we may not yet have the answers on how to maintain this system (or develop an equivalent) post Brexit, we need to ensure that people continue to think about the value of the intellectual property they have held within their products – and the protections they have with, or without, Protected Geographical Status from the EU.

Nicola McNeely, Intellectual Property expert at Capital Law

(Previous versions of this article have can be found online in Insider Media and Food Chain magazine)

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