By Paula Zito, PhD Candidate, Adelaide Law School
Over the last 5 years Australian food producers have increasingly realised the intangible value that exists in attaching a regional geographical location name such as Barossa Valley to Australian food (Regional Branding). Some food producers have become aware that consumers might be willing to pay higher prices for food with Regional Branding and are seeking to use Regional Branding within the framework of a legal system that protects and enforces the qualitative connection between regional food and origin.
The usage of Regional Branding is currently regulated under various Australian laws including competition and trademark laws. In keeping with Australia’s emphasis on brand names to create distinction between goods, these laws are primarily focused on the proprietary legal rights associated with a brand name for the registered owner of the brand name in order to increase sales of products and build consumer trust and confidence in a brand.
These laws do not contain specific criteria determining whether there is in fact a qualitative connection between food and origin before Regional Branding is applied to the relevant product. In the EU, on the other hand, regulation based on such criteria is considered pivotal given that a qualitative connection between food and origin is the core focus of the EU legal system that regulates when Regional Branding can be used on food.
Given that the focus of Regional Branding is on the usage of regional geographical location names on foods, my PhD thesis evaluates the worth of using Geographical Indications on food labels under a regulated food Geographical Indications system in a similar vein to how wine Geographical Indications are used on wine labels as legally defined Geographical Indications under the Australian wine Geographical Indications system.
The hypothesis is that where regional food has a qualitative connection with its origin, a regional geographical location name can be used on food labels with justification. Instead of using Place of Origin Labelling under current competition laws, the central tenet of my thesis is that Geographical Indications could be used in its place to indicate that regional food is in fact connected to its origin and that the connection has been verified as part of a food Geographical Indications system that provides legal protection and enforcement of that connection.
However it is not recommended that a food Geographical Indications system be implemented in Australia without careful forethought and consideration of how best to balance any interest and need in a protective legal food Geographical Indications system with Australia’s trading obligations and international Geographical Indications obligations.
Determining the potential worth of food Geographical Indications and their relevance to Australia involves a complex analysis of many international and national laws, trade, Intellectual Property and political and cultural issues. For instance, consideration must be given to issues such as Australia’s obligations regarding usage of geographical terms on food in various free trade and bilateral agreements with partner countries.
In particular, careful consideration of Australia’s agreements with its neighbouring countries in the Asia Pacific region, some of which are interested in Geographical Indication protection for their food products and seeking extended Geographical Indication recognition and protection abroad, must be given appropriate attention.
Another pertinent issue is considering the impact of the recent suspension of the Trans-Pacific Partnership (TPP) Agreement that was close to being finalised between the US, Australia and ten other Pacific Rim countries until the recent US election outcome. Suspension of this Agreement could strengthen some of the involved countries’ respective positions in relation to seeking extended international Geographical Indication protection for their food products. Food Geographical Indications are currently a highly topical international trade issue.
Accordingly, it is important that Australia gives regard to food Geographical Indications and how a food Geographical Indications system could be tailored to cater for Australia’s food and trade needs and obligations.
My PhD thesis provides this analysis against the backdrop of significant, original fieldwork carried out in the South Australian regions of the Barossa Valley and the Adelaide Hills and in Italy. The Italian/European Union Food Geographical Indications System was chosen as an example of a food Geographical Indications system from which guidance was taken as to whether a food Geographical Indications system could be a worthwhile investment for Australia.
Italy provided a solid case study given that Italy has been operating under a food Geographical Indications system since 1992 and has the highest number of food Geographical Indication registrations in the EU. Based on the findings from the fieldwork in Italy, this thesis addresses the risks, benefits and costs involved with a food Geographical Indications system as well as the elements that are required for an effective system.
I recommend that a food Geographical Indications system tailored to cater for Australia’s needs and obligations would be an extremely worthwhile investment for the Australian food industry and for Australian trade outcomes and generally to provide greater certainty and clarity regarding applicable laws concerning the connection between food and origin.