When is a Cornish Pasty not a Cornish Pasty?

United Kingdom

When it is produced in a post-Brexit world. Possibly.

 

The impact of Brexit is a “known unknown” in many sectors, not least in the food and drink industry where much of the relevant legislation comes from the EU. Such legislation includes safeguards for particular food and drink products from around the EU (and some non-EU countries where there is a reciprocal agreement) that have been granted a protected status.

 

These include products that have a specific geographical origin and possess qualities or a reputation that are due to that particular origin – protected geographical indications or “PGIs” (such as Cornish Pasties) and protected designations of origin or “PDOs” (such as Single Gloucester cheese), as well as those that are produced using traditional methods (traditional speciality guaranteed or “TSGs”, such as Traditionally Farmed Gloucester Old Spots Pork).

 

Such product names are afforded a protected status, and may be used as signs by producers in the geographical area defined or who comply with the specific conditions and/or methods of production for the product, as the case may be. For the EU, PGIs, PDOs and TSGs are a fundamental aspect of its food quality schemes. These labels recognise the specific local and traditional characteristics of certain products. Their purpose is to give consumers confidence in the authenticity and quality of their food, and enable producers to charge higher prices as a result.

 

There is currently no equivalent domestic legislation in the UK.

 

When the UK leaves the EU, on the one hand UK producers could in theory be free to use PGIs, PDOs and TSGs without heeding the “rules” attached to the specific label, notably those in which other EU Member States have a particular interest, such as Champagne (France), Feta cheese (Greece) or Prosciutto di Parma (Italy). This would clearly present opportunities for some to describe their products in a way that may be more appealing for consumers. That said, they would likely be at risk of a passing-off claim brought by an interested party.

 

On the other hand, it may also mean that UK product names that are currently protected in the EU and elsewhere (by virtue of bilateral agreements with the EU) may be used freely across the EU, and internationally, unless reciprocal agreements are put in place.

 

Those with an interest in preserving the reputation of protected products both in the UK and the EU27 have concerns that the value and status of genuine local and traditionally made products may be lost post-Brexit. The EU itself is keen to address this uncertainty.

 

On 21 September 2017, the European Commission’s Brexit Task Force published the version of its position paper on Intellectual property rights (including geographical indications) that it will put to the UK in the next round of negotiations. 

 

The position paper calls for the UK to implement specific domestic legislation (which it does not currently have) to ensure the continued protection of PGIs, PDOs and TSGs on a level comparable to that provided by EU law, and specifically that all such products protected in the EU must be given “automatic recognition” in the UK as at the date the UK formally withdraws from the EU.

 

The food and beverage industry will be watching closely to see how products protected under the PGI, PDO and TSG regimes will be dealt with post-Brexit. The EU’s keen interest in this area means the issue is likely to form part of the Brexit trade negotiations in the months ahead.

 

As with all things Brexit – watch this space.