Geographical Indications, Food Safety, and Sustainability Challenges

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Geographical Indications, Food Safety, and Sustainability Challenges and Opportunities David. A. Wirth Facultyof. LawGeographical Indications, Food Safety, and Sustainability Challenges and Opportunities David. A. Wirth Facultyof. Law Higher. Schoolof. Economics Boston. College. Law. School Facultyof. Law Higher. Schoolof. Economics Moscow February 13,

Paper examines interrelationship amongst:  Geographical indications (GIs); Substantive food safety standards; and Non-GIPaper examines interrelationship amongst: Geographical indications (GIs); Substantive food safety standards; and Non-GI label indications of quality, safety, or sustainability such as “organic, ” “GMO-free, ” and “sustainably produced. ”

Paper attempts to:  Identify the varying purposes of these schemes ;  IdentifyPaper attempts to: Identify the varying purposes of these schemes ; Identify the various sources of policy and law that apply to them; and Compare their treatment in various contexts, including TTIP and other free trade agreements.

Sources of Law: European Union European Council (1992). Regulation (EEC) No. 2081/92 on theSources of Law: European Union European Council (1992). Regulation (EEC) No. 2081/92 on the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs, 1992 O. J. Eur. Comm. (No. L 208) 1 -8. Through European Parliament and Council (2012). Regulation (EU) No 1151/2012 on Quality Schemesfor Agricultural Products and Foodstuffs, 2012 O. J. Eur. Comm. (No. L 343) 1 -29.

Mostly:  Wines Spirits Cheeses Cured Meats Mostly: Wines Spirits Cheeses Cured Meats

Familiar Examples Protected in European Union As:  Cognac Sherry Champagne Tequila Scotch (notFamiliar Examples Protected in European Union As: Cognac Sherry Champagne Tequila Scotch (not Scottish!) Whiskey Roquefort and Parmigiano Reggiano (not Parmesan!) Cheeses Teruel and Parma hams Balsamico di Modena Feta

Distinguishing Feature Terroir French Definition:  Ensemble des terres exploit é es par lesDistinguishing Feature Terroir French Definition: Ensemble des terres exploit é es par les habitants d’un village. Ensemble des terres d’une r é gion, consid é r é es du point du vue de leurs aptitudes agricoles et fournissant un ou plusiers products caract é ristiques, par exemple un vin. English Translation: terroir Russian Translation: терруар In other words, untranslatable … of course not, then it wouldn’t be French!

In 2003 France had 593 GIs (466 for wines and 127 for other products)In 2003 France had 593 GIs (466 for wines and 127 for other products) Italy: 420 GIs (300 for wines and spirits and 120 on other products) Spain: 123 GIs United Kingdom has a total of 65 products with protected status Databases at http: //ec. europa. eu/agriculture/quality_en More than 3000 total products in EU at last check Vigor of protection comes from protection throughout the single market

Three Levels of EU Protections (all GIs) Protected Designation of Origin (PDO): Protected GeographicalThree Levels of EU Protections (all GIs) Protected Designation of Origin (PDO): Protected Geographical Indication (PGI): Traditional Specialty Guaranteed (TSG):

Legal Protections Outside EU: Lisbon Agreement for the Protection of Appellations of Origin andLegal Protections Outside EU: Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1958) As revised at Stockholm on 14 July 1967, and as amended on 28 September 1979, 923 U. N. T. S. 189 And 21 May 2015 http: //www. wipo. int/edocs/mdocs/geoind/en/li_dc/li_1 9. pdf (Geneva Act of Lisbon Agreement on Appellations of Origin and Geographical Indications

Legal Protections Outside EU: Problem:  Not all states recognize protections for geographic indicationsLegal Protections Outside EU: Problem: Not all states recognize protections for geographic indications in the same way, incompatibility of municipal legal systems E. g. U. S. recognizes as trademarks, if at all (largely certification marks) Many potential GIs have become generic and therefore cannot be protected as trademarks (e. g. , “Parmesan” cheese) Lisbon Convention: 25 parties (including 7 EU member states) Geneva Act (11 signatories) Approximately 1000 registrations

Other National Systems of Protection, e. g. , Russia acceded to WTO membership inOther National Systems of Protection, e. g. , Russia acceded to WTO membership in 2012 Article 1516 of the Civil Code authorizes registration and recognition of “appellations of origin” ( «наименование места происхождения товаров» ) with Rospatent As of January 2016, 154 registered with Rospatent (WTO Russian Federation Trade Policy Review 2016)

Other National Systems of Protection, e. g. , Russia Some concern about compatibility ofOther National Systems of Protection, e. g. , Russia Some concern about compatibility of Russian law with TRIPs Need to broaden Russian definition to extend to cover international meaning of “geographical indication” Need to broaden authorization for registration commensurately (Soloveva, HSE 2016) Bilateral agreement with Switzerland 2011, protects Swiss watches, chocolate, Gruyère cheese, etc. Russian vodka, caviar and Sibirskie Pelmeni protected in Switzerland Anecdotal reports of reluctance to register Appellation of Origin of Goods (AOG) of foreign origin, e. g. Scotch whiskey

Distinguishing Features of Intellectual PROPERTY Refies intangibles …. . As monopolies Allows for tradeDistinguishing Features of Intellectual PROPERTY Refies intangibles …. . As monopolies Allows for trade in commodies that might otherwise be non-tradeable Prevents infringement through WTO dispute settlement procedures

 Theory:  harmonization (outside EU) Small number of parties (cf. Berne Convention on Theory: harmonization (outside EU) Small number of parties (cf. Berne Convention on copyright, 172 parties) Russia, U. S. not parties

International Trade Law recognizes intellectual property in 1994 Agreement on Trade-Related Aspects of IntellectualInternational Trade Law recognizes intellectual property in 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS): Patents (e. g. reciprocal recognition e. g. , for pharmaceuticals) Trademarks (e. g. Starbucks) Copyright (especially films) Solution to the Problem of Harmonization, among other things:

Trade-based theory of intellectual property protection,  including GIs (TRIPS)  Unique amongst WTOTrade-based theory of intellectual property protection, including GIs (TRIPS) Unique amongst WTO agreements, establishes affirmative obligations for members to enact identified legal protections for intellectual property. Reifies intellectual property, such as creative products like motion pictures, by creating goods that can be identified as such in international trade. Other provisions in trade agreements are typically “negative, ” constrain governmental behavior. TRIPS treats GIs as intellectual property requiring affirmative governmental protection and mutual recognition.

TRIPS for Protection for GIs All products are covered by Article 22, which definesTRIPS for Protection for GIs All products are covered by Article 22, which defines a standard level of protection. This says geographical indications have to be protected in order to avoid misleading the public and to prevent unfair competition. Article 23 provides a higher or enhanced level of protection for geographical indications for wines and spirits: subject to a number of exceptions, they have to be protected even if misuse would not cause the public to be misled. Exceptions (Article 24). In some cases, geographical indications do not have to be protected or the protection can be limited. Among the exceptions that the agreement allows are: when a name has become the common (or “generic”) term (for example, “cheddar” now refers to a particular type of cheese not necessarily made in Cheddar, in the UK), and when a term has already been registered as a trademark. Source: wto. org

Doha mandate: Creation of amultilateral register for wines and spirits.  Extension of theDoha mandate: Creation of amultilateral register for wines and spirits. Extension of the higher level of protectionfound in article 23 beyond wines and spirits to other products as cheeses and dried meats.

Disparities in domestic regulatory treatment can result in trade disputes:  EU law protectsDisparities in domestic regulatory treatment can result in trade disputes: EU law protects “geographical indications. ” U. S. law allows producers to protect GIs as trademarks. Nonetheless, many EU GIs are not protected in the United States, and may not be registerable as trademarks because of their widespread generic use. Products can be sold in the United States which use GIs protected in Europe, but which were not produced in that region. E. g. , “Parmigiano Reggiano” under the EU system, “Parmesan” cheese produced in the United States is regularly sold there.

International Protections for Geographic Indications European Union (TTIP negotiating position fact sheet):  “International Protections for Geographic Indications European Union (TTIP negotiating position fact sheet): “ The protection of geographical indications matters economically and culturally. ” “ Create value for local communities through products that are deeply rooted in tradition, culture and geography. ” “ Support rural development and promote new job opportunities in production, processing and other related services. ” “ Geographical names with commercial value are exposed to misuse and counterfeiting. ” “ Abuse of geographical indications limits access to certain markets and undermines consumer loyalty. ” “ Fraudulent use of geographical indications hurts both producers and consumers. ”

United States (letter from 50 Senators):  “ EU has been using its freeUnited States (letter from 50 Senators): “ EU has been using its free trade agreements (FTAs) to persuade its trading partners to impose barriers to U. S. exports under the guise of protection for its geographical indications. ”. . . “ EU seeks to. . . impair U. S. competition by imposing restrictions on the use of common food names through TTIP. ” Protection of GIs operate as “a barrier to. . . trade and competition. ” EU seeking in TTIP seeking “gratuitous use of GIs as a protectionist measure. ”

EU goals in TTIP:  “ We want the US to improve its systemEU goals in TTIP: “ We want the US to improve its system in several important ways. ” “ These include: protecting an agreed list of EU GIs, with rules to stop other producers misusing them; [and] “ Enforcing those rules effectively. ” Source: europa. eu EU public negotiation position in Transatlantic Trade and Investment Partnership

International Standards for Food Safety GIs no guarantee of safety or of other indicationsInternational Standards for Food Safety GIs no guarantee of safety or of other indications of quality Laboratory tests conducted on French wines detected residues of an insecticide (bromopropylate) and a fungicide (carbendazim) prohibited in France. Emmanuel Giboulot, produces organic wines in Burgundy under the appellations “Côte de Beaune” and “Haute Côte de Nuits, ” convicted for refusal to spray grapes with pesticides.

Harmonized International Food Safety Standards Codex Alimentarius Intergovernmental Dual function  Protect health PromoteHarmonized International Food Safety Standards Codex Alimentarius Intergovernmental Dual function Protect health Promote trade Nonbinding, advisory As of 2006: Evaluated 218 pesticides, establishing 2, 930 maximum residue limitations, Published 1, 112 food additive provisions for 292 substances

ISO 22000 International federation of standardizing bodies from 163 countries Not an intergovernmental organizationISO 22000 International federation of standardizing bodies from 163 countries Not an intergovernmental organization Work product: Voluntary standards Adopted by consensus Nonbinding, advisory 22000 series “auditable” (subject to verification by accredited private, third-party auditors or certifiers)

Purely private schemes  Global Food Safety Initiative Global GAP  Concern among developingPurely private schemes Global Food Safety Initiative Global GAP Concern among developing country exporters about operation as trade barriers, but not disciplined under trade agreements.

Trade-Based Disciplines on Food Safety Standards Trade agreements concerned with abuse of excessively rigorousTrade-Based Disciplines on Food Safety Standards Trade agreements concerned with abuse of excessively rigorous standards as trade barriers (negative obligations) E. g. , WTO Agreement on the Application of Sanitary and Phytosanitary Standards Codex Standards Transformed from floor to ceiling Operate as both sword and shield. Stricter standards subjected to scientific tests WTO disputes EU beef hormones EU biotech

Other International Standards for Labeling of Food Proliferation of labels, e. g. , Other International Standards for Labeling of Food Proliferation of labels, e. g. , Organically produced; Sustainably produced; Natural or all-natural; GMO-free; Antibiotic-free; Hormone-free or no hormones added; Free-range or cage-free; Grass-fed or pasture-raised; and Humane raised and/or handled

In contrast to food safety standards, little international harmonization Primarily through Codex:  NutritionIn contrast to food safety standards, little international harmonization Primarily through Codex: Nutrition Labeling (mandatory to governmentally-established standards); Organically produced foods (optional to governmentally-established standards) GMOs (optional)

Trade-Based Disciplines on Food Labeling As with food safety, concern is for abuse E.Trade-Based Disciplines on Food Labeling As with food safety, concern is for abuse E. g. , Uruguay Round Agreement on Technical Barriers to Trade Requires use of “relevant international standards, ” e. g. , Codex, ISO Departures allowed, but only when international standard “would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued. ” All labels litigated in WTO held inconsistent with TBT: EU Sardines (violates Codex standard) U. S. tuna (violates national treatment standard) U. S. meat (violates national treatment standard)

Comparison of GIs with food safety and quality labels Figure 1.  Comparison ofComparison of GIs with food safety and quality labels Figure 1. Comparison of international legal standards for GIs, food safety standards, and non-GI claims of food quality International Protections for National Measures Affirmative (Positive) Harmonization Trade-Based (Negative) Disciplines GIs TRIPS TTIP? Noneed–international protectionfor nationally-established. GIs in. TRIPS None Food Safety Standards Notapplicable Codex(non-binding) ISO(non-governmental, non-binding) Privatecertifying organizations WTOSPSAgreement TTIPSPSchapter Non-GI labeling of quality, sustainability, humane treatment, etc. Notapplicable Codex(non-binding), but coverageverylimited WTOTBTAgreement TTIPTBTchapter

Conclusion  GIs, a form of label, receive highest level of affirmative protection underConclusion GIs, a form of label, receive highest level of affirmative protection under TRIPS GIs not necessarily correlated with food safety (French wines) or other indications of quality (M. Giboulot) But GIs typically include not just geographical origin but also production methods which are protected Trade agreements restrict domestic use of food safety and labelling Trade agreements also restrict use of process and production methods (e. g. , TBT tuna labeling dispute) Only distinguishing feature of GIs is location of production ( terroir) If we give the highest trade-based protection to GIs, then Maybe food safety standards and other label indications of quality deserve some trade-based measure of affirmative protection and mutual recognition. . . And, contrary to received wisdom about trade agreements, GIs demonstrate that affirmative protection for food safety standards and other label indications of quality are consistent with structure of trade agreements.