WORKSHOP ON LABELING OF WINES IN ACCORDANCE WITH THE NEW EU STANDARDS EU LEGISLATION ON LABELING REGISTRATION 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 INDICATIONS The 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 INDICATIONS Autonomous 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 SYSTEM Quality 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 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 CopyrightIndustrial PR Patents Trademarks Designs GI

HIGH LEVEL OF PROTECTION – – REGISTRATION SYSTEM Negative 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 SYSTEM Member 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 SYSTEM A new registration procedure: National procedureCommunity procedure Filing of the application Absolute ground examination Relative ground procedure National registrationFiling of the application Receipt + 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 SYSTEM Amendment 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 SYSTEM Controls: 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 SYSTEM Controls 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 SYSTEM Controls 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: ion_en.htm ion_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/ International level of protection for PDO and PGI WTO and Doha negotiations Free Trade Agreements – PDO and PGI …