WORKSHOP ON LABELING OF WINES IN ACCORDANCE WITH THE NEW EU

STANDARDS

EU LEGISLATION ON LABELINGREGISTRATION OF PDO AND PGI

ALBERTO RIBEIRO DE ALMEIDA, Ph.D.DOURO AND PORT WINE INSTITUTE (IVDP)

BELGRADE, SERBIA

30 JANUARY 2013

INTRODUCTION

Appellations of Origin – now PDO

Geographical Indications – now PGI

• Historical approach – a difficult conquest in time• Economical importance – it is undeniable • A competitive tool on a competitive market

High level of protection – we are protecting a territory and a collective right – registration system

• European success• TRIPS importance• Quality mechanism• Export tool – it makes a difference – Location matters

Labeling – it is not easy to label a wine

• Wine rules• Horizontal rules

APPELLATIONS OF ORIGIN AND GEOGRAPHICAL INDICATIONSThe oldest trade distinctive sign

1. Ancient times

Simple indications of source

2. Middle ages

Collective marks with a quality function and collective geographical marks also with a quality function

3. Modern period

The first appellations of origin and internationalization of the trade

4. Contemporary history

Lisbon Agreement

5. Transnational era

European rules (Regulations on wine and other products)

TRIPS agreement

Free Trade Agreements (FTA and DCFTA)

APPELLATIONS OF ORIGIN AND GEOGRAPHICAL INDICATIONSAutonomous IPR

More than 160 countries (GI)

A very long history but a very difficult conquest in time

It has been difficult to protect appellations of origin internationally and in several national jurisdictions

The great development of appellations of origin and geographical indications was with the European law and the TRIPS agreement

Legal functions (different from trademarks)

Product distinctive signs

Geographical origin

Function of quality assurance

Collateral and public interests

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEMQuality policy and CAP – a CAP instrument

Treaty on the Functioning of the European Union – TFEU - Article 39.1

The objectives of the common agricultural policy shall be:

(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilization of the factors of production, in particular labor;

(b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;

(c) to stabilize markets;

(d) to assure the availability of supplies;

(e) to ensure that supplies reach consumers at reasonable prices.

Article 40.1.

In order to attain the objectives set out in Article 39, a common organization of agricultural markets shall be established.

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEM

‘Quality wines produced in a specified region’ becomes ‘Protected Denomination of Origin (PDO)’

and

‘Table wines with geographical indication’ becomes‘Protected Geographical Indication (PGI)’

[Art 118s]

Reg. 1234/2007, October 22

Reg. 607/2009, July 14

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEM

PDO

means the name of a region, a specific place or, in exceptional cases, a country used to describe a wine that complies with the following requirements:

• (i) its quality and characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors;

• (ii) the grapes from which it is produced come exclusively from this geographical area;

• (iii) its production takes place in this geographical area;• (iv) it is obtained from vine varieties belonging to Vitis vinifera.

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEM

PGI

means an indication referring to a region, a specific place or, in exceptional cases, a country, used to describe a wine that complies with the following requirements:

• (i) it possesses a specific quality, reputation or other characteristics attributable to that geographical origin;

• (ii) at least 85 % of the grapes used for its production come exclusively from this geographical area;

• (iii) its production takes place in this geographical area;• (iv) it is obtained from vine varieties belonging to Vitis vinifera

or a cross between the Vitis vinifera species and other species of the genus Vitis.

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEM

Positive right

• Right to use the PDO/PGI• Authorization to use• Intellectual Property Right• Not only unfair competition• A great evolution on the last decades• A distinctive sign that is a subjective right• Similar to a trademark, a patent or other IPR

IPR

Copyright Industrial PR

PatentsTrademarksDesignsGI

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEMNegative rights:

• any direct or indirect commercial use of a protected name by comparable products not compliant with the product specification of the protected name, or in so far as such use exploits the reputation of a designation of origin or a geographical indication;

• any misuse, imitation or evocation, even if the true origin of the product or service is indicated or if the protected name is translated or accompanied by an expression such as ‘style’, ‘type’, ‘method’, ‘as produced in’, ‘imitation’, ‘flavor’, ‘like’ or similar;

• any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the wine product concerned, and the packing of the product in a container liable to convey a false impression as to its origin;

• any other practice liable to mislead the consumer as to the true origin of the product

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEMMember States:

• Member States shall take the steps necessary to stop unlawful use of PDOs/PGIs.

• Ex officio protection?• Criminal measures (national level)

• ECJ position (parmesan case)• Unfair competition• Civil action• Criminal measures (?)

• ACTA / TRIPS• Directive 2004/48/EC of the European

Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEM

PDO/PGIs vs. Trademarks:

• A PDO/PGI application may be rejected if it conflicts with an existing reputed or well-known trademark (likelihood of confusion as to the origin of the products).

• A registered PDO/PGI prevails over a trademark application.

• An existing trademark may continue to be protected even though an identical or similar PDO/PGI is further registered = co-existence.

• ECJ conflicts

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEMA new registration procedure:

National procedure Community procedure

Filing of the application

Absolute ground examination

Relative ground procedure

National registration Filing of the applicationReceipt + publication for opposition purposes

Absolute ground examination

Relative ground procedure

Registration

Cancellation procedure

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEM

Content of applications

The Technical File:

• Name to be protected• Name and address of the Applicant• Product Specification• Single document

Article 118.º-C

Third Countries:

• Similar system• National protection

Article 118.º-D

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEM

Wine specification (also applicable to third countries):

• (a) the name to be protected;• (b) a description of the wine(s);• (i)for wines with a designation of origin, its principal

analytical and organoleptic characteristics;• (ii)for wines with a geographical indication, its principal

analytical characteristics as well as an evaluation or indication of its organoleptic characteristics;

• (c) where applicable, the specific oenological practices used to make the wine(s) as well as the relevant restrictions on making the wine(s);

• (d) the demarcation of the geographical area concerned; (…)

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEM

Wine specification:

• …• (e) the maximum yields per hectare;• (f) an indication of the wine grape variety or varieties the

wine(s) is obtained from;• (g) the details bearing out the link referred to in

Article 34(1)(a)(i) or, as the case may be, in Article 34(1)(b)(i);• (h) applicable requirements laid down in Community or

national provisions or, where foreseen by Member States, by an organization which manages the protected designation of origin or geographical indication, having regard to the fact that such requirements shall be objective and non-discriminatory and compatible with Community law.

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEMAmendment of the product specification:

In case of a substantial amendment: the whole registration procedure applies.

In case of a minor amendment: the examinations’ and oppositions’ procedures do not apply.

• A minor amendment:• does not relate the essential characteristics of the product;• does not alter the link; • does not include a change in the name of the product;• does not affect the demarcated geographical area;• does not entail any further restrictions on the marketing of the

product.

In such a case, the decision belongs to the MS which shall inform the Commission. For third countries, the decision belongs to the Commission.

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEMControls:

Member States shall designate the competent authority or authorities responsible for controls of PDO/PGI wines.

Annual verification of compliance with the product specification, during the production and during or after conditioning of the wine, shall be ensured by:

• the competent authority or authorities with adequate guarantees of objectivity and impartiality, and have at their disposal the qualified staff and resources needed to carry out their tasks; or,

• one or more independent control bodies to which the competent authority has delegated certain control tasks, operating as a product certification body

Third countries (art. 118-P/2)

• One or more public authorities (art. 118-P/4)• One or more certification bodies (ISO/IEC Guide 65 – art. 118-P/3)

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEMControls in detail:

Concerns:

• Verification of the conditions laid down in the product specification;

• +

• PDO: organoleptic and analytical analysis;

• PGI: analytical analysis + possible organoleptic analysis.

• => anonymous samples, the wine shall conform with the characteristics and qualities described in the product specification. The control can be carried out at any stage in the production process, including after the packaging stage.

HIGH LEVEL OF PROTECTION –– REGISTRATION SYSTEMControls in detail:

3 systems:

• (a) Systematic;• (b) Random check based on a risk analysis (minimum of producers

subject to the control shall be precised);• (c) Sample (number, nature and frequency of the controls shall be

foreseen).

If the control is negative, the product can be placed on the market, but without the relevant PDO/PGI, provided the other legal requirements are satisfied.

Concerning third countries (art. 27 – reg. 607/2009)

• These countries shall send the Commission information on the competent authorities,

• About the aspects covered by the check and• Prof that the wine fulfills the conditions of the relevant PDO or PGI.

LABELING

PDO, PGI and traditional expressions

Regulation 607/2009 – detailed rules on PDO, PGI and traditional terms

• Compulsory particulars• Optional particulars• Rules on presentation• Member Sates may establish stricter rules

Additives, allergens, ingredients

Regulation 1169/2011, 25 October

It is not easy…

LABELING

Regulatory Measures

Protected designations of origin

Protected geographical indications

Registration procedure

High level of protection

Control of the product specifications

Traditional terms

Registration procedure

Examples: «Reserve», «Grand cru», «Château», «Tawny», «Vintage», etc.

IVDP example: opposition to a US application for traditional terms «Tawny», «Ruby» and «Vintage» (these are Port traditional terms)

Regulation 607/2009 – detailed rules on PDO, PGI and traditional terms.

LABELING

Compulsory particulars

PDO/PGI

Actual alcoholic strength by volume

Indication of provenance

Indication of the bottler, etc.

Optional particulars

Vintage year

Name of grape varieties

Traditional terms

Community symbols,

Production methods, etc.

Rules on presentation

Same field of vision on the container

Indelible characters and clearly distinguishable

Member Sates may establish stricter rules

Size of the appellation of origin

Regulation 607/2009 – detailed rules on labeling and presentation

LABELING

EU Regulation 1169/2011

Regulation on the provision of food information to consumers

Aim: health and consumer protection

Main objectives:

• Legibility of label: clear and comprehensible• Origin labeling: remains voluntary, but…• Nutrition information

Application of the new rules:

• From 13 December 2014• With exception of information related to mandatory nutrition labeling, which

shall apply from 13 December 2016

More information:

• Commission webpage: http://ec.europa.eu/food/food/labellingnutrition/foodlabelling/proposed_legislation_en.htm

LABELING

EU Regulation 1169/2011 – effects on the wine sector

Exceptions:

• List of ingredients• Nutrition declaration

• For example: energy value

• All of these exceptions will be evaluated

Allergens: UE Regulation 579/2012 (wine sector)

• Sulfites• Eggs• Milk

Labels are commercial signs

CONCLUSION - THE FUTURE

Some uncertainty concerning:

Additives, allergens, ingredients

Regulation 1169/2011, 25 October

Use of PDO and PGI as an ingredient (pizza and chocolates issues)

new regulation (EU) 1151/2012..

International level of protection for PDO and PGI

WTO and Doha negotiations

Free Trade Agreements – PDO and PGI

…