PDO ingredients, false move by the EU Court of Justice on Aldi’s champagne sorbet
Under the Christmas holidays the Luxembourg judges played some trick on Champagne. And to the PDO’s, more in general, by affirming the legitimacy of a reference to the French bubbles in the label a sorbet made from the German retailer Aldi. A dangerous precedent.
Protection of PDO’s and PGI’s, the European rules
Regulation EU No. 1151/12 on ‘quality schemes for agricultural products and foodstuff’ updates a legislative framework dating back to 1992, in order to safeguard and enhance the traditional agri-food productions rooted on the territories.
Those names registered in Europe as PDO (Denomination of Protected Origin) and PGI (Protected Geographical Indication) ‘are protected against:
a) any direct or indirect commercial use of a registered name in respect of products not covered by the registration, insofar (…) as using the name exploits the reputation of the protected name, even in the case that such products are used as ingredients; (…)
b) any other practice liable to mislead the consumer as to the true origin of a like product’. (1)
PDO Ingredients, rules to follow
The European Commission, in its own guidelines on labeling of food products that contain PDO or PGI ingredients, (2) has indicated the following criteria:
– in the sole ingredients list of a product that contains one of them, PDO or PGI ingredients may be indicated with the complete reference to the registered name, without any further burden,
– in the denomination of a compound product – as well as in other parts of the label, or in the advertisement – PDO or PGI ingredients may be mentioned based on the following conditions:
1) exclusivity. ‘Said product should not contain any other “comparable ingredient”, this means no other ingredient that may substitute entirely or partially the ingredient that benefits from a PDO or PGI’. In other words, the PDO or PGI must be the sole component of the class of goods to which it belongs, (3)
2) significant amount. ‘The ingredient should be employed in sufficient quantity to give an essential characteristic to the food product in question’, (4)
3) indication of the amount. The quantity of the ingredient to which evidence is given must be specified, in relation to the total, (5)
4) In Italy, an authorization of the ‘competent protection association’, which rest to be included in a ‘special register held and updated by the Consortium (i.e. protection association) itself’, must be given to the users of PDO or PGI in a compound product. (6)
The European approach tends to guarantee that – every time it takes credit – the presence of a PDO or PGI ingredient is significant (exclusive to the category of products employed) and the consumer must be informed (through the indication of its quantity).
The Italian legislator has taken one step further, by providing the consortia with the role of supervisors. Either on traceability of the protected ingredients (in view of preventing frauds) and on marketing strategies that may cause prejudice to the reputation of the protected name. (7)
PDO Ingredients, a false step by the European Court of Justice
The European Court of Justice has been called upon to give a preliminary ruling on the legitimacy of the reference towards champagne – registered in Europe as a PDO product – in the name of a sorbet that contains it in very small amount (12%). (8)
The dispute behind the European assessment has been carried out by the Comité interprofessionnel du Vin de Champagne (CVIC) towards Aldi, the German giant of discount supermarkets.
The issue of interpretation concerns a Regulation that provides wines protected by designation of origin with a level of protection even higher than the one provided for the generality of PDO and PGI foods. In theory, at least.
‘PDO’s and geographical indications and the wines using those protected names in conformity with the product specification shall be protected against: a) any direct or indirect commercial use of a protected name: (…) in so far as such use exploits the reputation of a designation of origin or a geographical indication.’ (9)
The EU Court of Justice has recognized the applicability of the Regulation to the Champagner sorbet case, which is ‘not in compliance with the product specification relating to that PDO, containing an ingredient in accordance with the same’. (10)
However according to the Court, ‘the name “ChampagnerSorbet “ used to describe a sorbet containing champagne affects the reputation of the PDO “Champagne” , which sends messages of quality and prestige, so to benefit from such reputation’. (11)
EU judges have concluded that ‘the exploitation of the reputation of a protected designation of origin’ will be allowed only ‘if the food product does not have, as an essential characteristic, a taste given primarily by the presence of such ingredient in its composition’. (12)
A political decision, it’s easy to say, geared towards neo-liberalism rather than the system of protection of geographical indications established in Europe. Nothing new except the regret, even after European Institutions have included in CETA the groundwork to dismantle the system itself.
(1) See Regulation UE No. 1151/12, Article 13.1
(2) ‘Guidelines on labeling food products that use as ingredients products with protected designation of origin (PDO) or of protected geographical indication (PGI)’
(3) For example, the Prosciutto from Parma PDO must be the only meat present in the filling of ‘tortellini with Prosciutto from Parma PDO’. Viceversa, Parmigiano Reggiano PDO cannot be cited in the naming of a grated cheese mix that contains other cheeses
(4) ‘However the Commission cannot, given the diversity of the cases, suggest a minimum percentage equally applicable’ (5) See Reg. EU 1169/11, Article 22. See also the following article https://www.greatitalianfoodtrade.it/en/labels/cheese-scam-fraud-in-slices
(6) Refer to Italian Legislative Decree 297/04 ‘penalty provisions in application of Regulation (EC) No 2081/92, on the protection of geographical indications and designations of origin for agricultural products and foodstuffs’, Article 1.1.c
(7) If it weren’t prescribed by law, the authorization of the Consorzio di Tutela of the related PDO, then again, a minimum amount of Parmesan would be enough – even as the sole cheese – in the Pringles recipe, to claim the presence of the famous Italian PDO in a symbol of ‘junk-food’, with clear damage to the reputation of the Reggiano cheese
(8) Case C-393/16, sentence 20.12.17, at http://curia.europa.eu/juris/document/document.jsf?text=&docid=198044&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=863443
(9) Refer to Regulation UE No. 1308/13, the Single Common Market Organization (CMO), Article 103.2.a.ii
(10) See sentence in above Note 8, Section 36 and point 1 of the operative part
(11) Also see, Section 41
(12) Ibidem, operative part, point 2. The EUCJ then remits to ‘the national courts to evaluate, in light of the circumstances of every single case, if an employment of such is aimed to exploit the reputation of a PDO’ (Section 46)