How Brexit brought food and drink brands under threat

For those of us who enjoy a hearty sum­mer pic­nic, Brex­it threat­ened to bring rain clouds to the par­ty, with fears over vital geo­graph­i­cal indi­ca­tion (GI) pro­tec­tion for some of our most trea­sured sta­ples.  

GIs were cre­at­ed as part of a 1992 EU scheme. They des­ig­nate prod­ucts that orig­i­nate from a spe­cif­ic area and pos­sess cer­tain qual­i­ties, char­ac­ter­is­tics or rep­u­ta­tion due to their place of ori­gin. In the UK, this cov­ered icon­ic names like Melton Mow­bray Pork Pies, Stil­ton cheese, and that cheeky Scotch Whisky hid­den in a hip flask. 

This meant that Blue Stil­ton could only be pro­duced with­in the coun­ties of Leices­ter­shire, Der­byshire and Not­ting­hamshire and must take the form of a “blue veined mould­ed cheese made in cylin­dri­cal form from full cream cow’s milk”. Like­wise, a Cor­nish pasty must be made local­ly, have a “D” shape and con­tain a cer­tain pro­por­tion of pota­to and meat.

The scheme, which UK and oth­er Euro­pean man­u­fac­tur­ers had to apply for before being reg­is­tered, meant that no oth­er EU pro­duc­er could make a pasty and call it Cor­nish or describe their sparkling alco­holic drink as Cham­pagne if it wasn’t made in the French region. It also pro­hib­it­ed, say, an Argen­tin­ian meat firm mak­ing a Melton Mow­bray pork pie and sell­ing into the UK.

GIs were incor­po­rat­ed into EU trade agree­ments pre­vent­ing man­u­fac­tur­ers in Japan, for exam­ple, from mak­ing and sell­ing the pro­tect­ed prod­ucts in their domes­tic and export mar­kets.

As of Novem­ber 2019, there were 1,457 reg­is­tered EU GIs, of which 73 were UK reg­is­tra­tions. After Brex­it there were con­cerns that the law would no longer apply to UK brands, with no legal pro­vi­sion for domes­tic GIs under UK law. This led to scare sto­ries of fake prod­ucts fly­ing onto UK super­mar­ket shelves, low­er­ing the qual­i­ty of our pic­nics and tea times and hit­ting man­u­fac­tur­ers’ rev­enue and rep­u­ta­tion.

For­tu­nate­ly, the UK/EU trade deal agreed that UK-reg­is­tered GIs would con­tin­ue to be pro­tect­ed under the EU scheme. GIs with EU ori­gin were also grant­ed pro­tec­tion under a new UK GI scheme. This pro­tects GIs sold in Great Britain but does not apply to North­ern Ire­land, which will con­tin­ue to use the EU sys­tem. UK brands want­i­ng GI reg­is­tra­tion post-Brex­it must now apply to both the UK scheme and the EU if they want pro­tec­tion there.

Food tourism

Accord­ing to the Melton Mow­bray Pork Pie Asso­ci­a­tion, the GIs of both Stil­ton and the icon­ic pies help bring £100m of food tourism cash into Leices­ter­shire every year.

“Peo­ple come on Pork Pie pil­grim­ages,” says chair­man Matthew O’Callaghan. “The GIs are impor­tant for local jobs and invest­ment, but Brex­it brought uncer­tain­ty.”

O’Callaghan con­tact­ed the gov­ern­ment after the EU ref­er­en­dum and was told that pork pie pro­duc­ers’ best option would be to take out cer­ti­fi­ca­tion marks, anoth­er form of intel­lec­tu­al prop­er­ty pro­tec­tion.

“We felt it was too expen­sive though to do this in each coun­try and then legal­ly police it our­selves,” he says.

The Scotch Whisky Asso­ci­a­tion (SWA), rep­re­sent­ing man­u­fac­tur­ers con­tribut­ing over £5.5bn to the UK econ­o­my, does have that pow­er. It decid­ed to proac­tive­ly seek extra GI pro­tec­tion in coun­tries around the world, such as Laos. It’s cur­rent­ly seek­ing cer­ti­fi­ca­tion marks in the US and Hong Kong.

“We didn’t real­ly see Brex­it as a seri­ous threat. GIs pro­tect not just pro­duc­ers but also con­sumers, so if the EU took away Scotch Whisky pro­tec­tion it would have been an own goal,” explains Lin­de­say Low, deputy direc­tor of legal affairs at the SWA.

The new UK scheme is impor­tant because his­tor­i­cal­ly most GI lit­i­ga­tion has focused on domes­tic man­u­fac­tur­ers and super­mar­kets fak­ing brands, says Jere­my Dick­er­son, part­ner at law firm Burges Salmon.

“There is now a real oppor­tu­ni­ty for the less block­buster UK food brands to reg­is­ter their own GIs under the new ded­i­cat­ed UK scheme,” he says. “A Kent cider mak­er, for exam­ple, may not have reg­is­tered under the EU scheme as their main mar­ket is the UK. Now they have a bet­ter regime and should get pro­tect­ed.”

UK GIs in exist­ing EU bilat­er­al deals were also rolled over in last year’s agree­ment. “There is no coun­try where we were pro­tect­ed pre-Brex­it that we’ve now lost,” states Low. “It is vital that GIs con­tin­ue to be incor­po­rat­ed in new UK Free Trade Agree­ments (FTAs). We are cur­rent­ly pro­tect­ed in coun­tries such as New Zealand but there are a lot of UK prod­ucts which are not.”

The gov­ern­ment seems to be lis­ten­ing. In the UK-Japan FTA signed last Octo­ber it increased the num­ber of UK GIs from sev­en in the EU-Japan deal to poten­tial­ly more than 70, includ­ing Eng­lish sparkling wine. And in the UK-Aus­tralia FTA in June it was stat­ed that the UK will be able to put for­ward GIs for poten­tial pro­tec­tion.

David Henig, direc­tor of the UK Trade Pol­i­cy Project at the Euro­pean Cen­tre for Inter­na­tion­al Polit­i­cal Econ­o­my, says this is a huge change. “Pri­or to Brex­it the gov­ern­ment didn’t see GIs as a pri­or­i­ty,” he says. “It was seen as some­thing Euro­peans wor­ried about, not us.”

Indeed, O’Callaghan says that in the EU-Cana­da trade deal of 2016 the UK offered no pre­ferred GI prod­ucts to the EU for poten­tial pro­tec­tion. “GIs were nev­er auto­mat­i­cal­ly put in a trade deal. Each coun­try had to pro­vide a list for con­sid­er­a­tion. We just didn’t choose to put any up,” he explains. “There seems to be a recog­ni­tion now that our prod­ucts should be includ­ed in trade deals. We have cer­tain­ly lob­bied that they should be.”

A tough recipe

Despite the best inten­tions, nego­ti­at­ing GIs in trade agree­ments can be a chal­lenge. For exam­ple, it can be tough to agree prod­uct def­i­n­i­tions or avoid clash­es with gov­ern­ments seek­ing to pro­tect their domes­tic man­u­fac­tur­ers. There must also be clear enforce­ment pro­ce­dures enshrined in the doc­u­ments.

UK man­u­fac­tur­ers are help­ing in the process. “We put a lot of effort into brief­ing the gov­ern­ment,” says Low. For exam­ple, the SWA would like to see a whisky def­i­n­i­tion in its impor­tant mar­kets requir­ing that it be made from grain and aged in wood­en bar­rels; it sees FTAs as a key tool to achieve this goal. 

“There are always going to be fake goods out there, but GIs can keep them to a lev­el where cus­tomers can be guar­an­teed authen­tic­i­ty,” he says, adding that GIs can also be a great ambas­sador for often much-maligned British food, open­ing doors to new mar­kets. 

Melton Mow­bray Pork Pies are not export­ed to any coun­try apart from Ire­land, but O’Callaghan cer­tain­ly sees the poten­tial. “Hav­ing a GI abroad leaves the mar­ket open in case we want to export and removes any poten­tial com­peti­tors,” he explains. “I can see them going down a bomb in pork-lov­ing Chi­na.”

There could also one day be demand inter­na­tion­al­ly for UK region­al fare, such as Liv­er­pool scouse (a form of stew) or Birm­ing­ham Balti.

O’Callaghan is keen to see meals like these incor­po­rat­ed in the UK GI scheme.

“It would help local cafes and boost region­al food rep­u­ta­tions,” he says. “It’s all about cus­tomers get­ting the gen­uine arti­cle.”

Balti at a pic­nic, or per­haps a Christ­mas fair? What­ev­er the occa­sion, the sta­tus of British food looks healthy post-Brex­it.