Richard Gray: Will Brexit threaten EU protected food names?
Richard Gray, partner and head of the corporate team at Carson McDowell in Belfast, examines the potential impact of Brexit on the food and drink sector.
According to Invest Northern Ireland, the food and drink sector is worth £5 billion to the economy in Northern Ireland. As well as being the largest manufacturer and a leading exporter for the region it also employs 22,000 directly, with more than 78,000 engaged in farming and support services.
The concerns of local producers, processors and others about the impact of Brexit on the sector are well documented. The extent of disruption will depend on how and when the UK leave the European Union. One specific area of concern within the industry both here and elsewhere in the UK which has not yet received wide attention is the impact of Brexit on the status of EU protected food names post-Brexit.
What is an EU protected food name?
An EU protected food name provides producers with protection against other producers marketing their products using the same name, unless it is agreed with the EU. There are three different protection marks created by the EU, namely:
- Protected designation of origin
- Traditional speciality guaranteed
- Protected geographical indication
Whilst this article will briefly explain all three protection marks, it will mainly focus on PGIs.
Protected designation of origin (PDO)
To qualify the product must be produced, processed and prepared in one area with unique characteristics from this area to avail of a PDO. The product must be made with distinct local knowledge for the EU to grant a PDO. Northern Ireland has only one PDO, Lough Neagh Pollan, which was granted its status in 2018.
Traditional speciality guaranteed (TSG)
In order for a product to be protected with a TSG mark, it must have a traditional name and characteristics (cannot be due to the area the product is based or made in) that distinguish it from other products. Once a product is granted with a TSG mark, it can be produced in any country within the EU.
Protected geographical indication (PGI)
In order for a product to achieve PGI standard, the product must be produced, processed and prepared in one area and have distinct characteristics that are significant to that area. The EU will only award a product with the PGI mark if the producer can prove that it has a reputation, characteristics or qualities that are a direct effect of the area in which the product is associated with. Northern Ireland currently has three products with PGI status, which are: Comber New Potatoes, Armagh Bramley Apples, and Lough Neagh Eels.
Loss of PGI mark protection to producers of these products will further exacerbate the negative impacts of Brexit. Of course other forms of intellectual property right may exist in particular brands or products, but the PGI mark brings with it the opportunity to enhance the value of the protected product.
Brexit with a deal
Even if the UK were to leave with a deal, uncertainty still remains as to whether it would be based on the terms of the Withdrawal Agreement or an alternative negotiated deal. At the time of writing the latter looks unlikely. The transitional arrangements envisaged by Withdrawal Agreement would enable geographical indications to remain protected until the final day of the transition period (31st December 2020) without any reassessment. If this is agreed, there would be no change for individuals or businesses in how they control and use signs protected by geographical indications in the meantime.
It seems likely that any negotiated deal would provide for all current UK PGIs to continue to be protected in the UK and EU and vice versa. However, nothing is ever certain with Brexit.
Brexit with no deal
In the event that the UK ‘crashes out’ without a deal, it is anticipated that the UK government would set up their own scheme to mirror that of the EU. The Department for Environment, Food and Rural Affairs (Defra) would use the same classes of EU geographical indications. Defra would also manage the schemes, maintain the register of protected products and process new applications. The schemes would be open to the UK and both EU and non-EU members to apply. However those protections would only apply within the UK.
However, Food and drink producers would need to prepare to apply to the European Commission to regain EU protection and the right to use the EU geographical indication in a no deal scenario.
Reapplying for EU protection could become a potentially time-consuming and costly issue for food and drinks producers. The potential for a time period that leaves NI PGIs unprotected could leave scope for imitators or products of a lesser quality to take advantage until PGI protection is restored.
Producers of products protected under the PGI scheme will hope that the UK government does all it can to ensure there is no undermining of the value of PGI scheme to the detriment of NI producers. Any such impact would further exacerbate the Brexit related concerns of producers. In advance of any further clarification from the government, producers should look at other steps to mitigate the risk of losing PGI status and protecting their brands, for example to ensure protection of intellectual property rights within the EU they may wish to consider applying to register a trade mark, collective mark or certification mark in the EU.