If you cherish the thought of sitting down to a delicious meal of wild Scottish salmon, followed by tender Orkney lamb and Ayrshire new tatties slathered in butter, with a final course of Dunlop cheese, all washed down with a fine, single malt Scotch whisky, then you will be relieved to hear that all of these celebrated products are protected from counterfeit or imitation under current EU law. They have all been granted Protected Geographical Indicators (PGI) status. All of these delicacies and a range of others like the iconic Stornoway black pudding have survived the coronavirus pandemic, but can they survive Brexit?

As trade talks continue in Brussels, in the wake of the Covid-19 hiatus, the UK’s negotiators, led by David Frost, will be unlikely to forget the importance of PGI. One of the key products protected by EU PGI legislation is, of course, Scotch whisky. David Frost, in his new post as National Security Adviser and as the Prime Minister’s Chief Negotiator with Task Force Europe, was CEO of the Scotch Whisky Association from 2013-2016, so he is well aware of the importance of the industry and the significance of protecting whisky from foreign counterfeit spirits. Scotland also boasts PGI status on a whole variety of unique products such as Orkney beef, Scotch beef and lamb and Shetland lamb. Popular cheeses like Orkney Scottish Island cheddar enjoy PGI status, as do Arbroath Smokies and Scottish farmed salmon. Away from food and drink, special PGI status has even been granted to Shetland wool.

Geographical Indications are a form of intellectual property protected by law and granted to specialized products that have been produced, processed or prepared in a specific geographical region and in a specialized way. So, even if Charles Macleod’s exact secret recipe was stolen and copied, Stornoway black pudding cannot be produced in Strasbourg, or even, for that matter in Stockport, in the same way as no sparkling wine can be called Champagne, unless it comes from the famous province of Champagne in northeast France. These products also have to be produced or conform to rigorous regional or traditional criteria. They are often regarded not simply as a valuable commercial asset, but as part of our treasured cultural heritage. The vast majority of geographical indications are on food and drink, particularly wines and spirits. This is because soil and climate conditions can contribute to the products’ specific qualities. But PGI’s also apply to some non-agricultural products like Swiss watches and certain types of carpets and other handicrafts from around the world.

The value of PGI’s in protecting our distinctive products is beyond doubt. The Scotch Whisky Association is engaged in about 60 legal actions on fakes at any given moment, in addition to the action taken by individual distillers and whisky companies or huge conglomerates like Diageo. The popularity and growth in whisky sales has fuelled a burgeoning market for fakes, particularly among counterfeit old and rare whiskies that can fetch high prices at auction. But there is also a huge market for bathtub booze in countries like China, where fake alcohol is brewed in grotty bathtubs or in grubby sinks, then placed in posh-looking bottles with fake Scotch-sounding labels like ‘Johnnie Worker Black Labial – Distilled, Blended and Olded in Scotland’. Sometimes the labels are not so easy to identify as counterfeits and unwitting victims end up drinking alcohol made from poor quality ingredients or toxic industrial chemicals that can cause acute illness, including blindness and even death. Some experts estimate that up to 30% of alcohol currently sold in China is fake. PGI status provides a solid legal framework enabling action to be taken against these frauds and forgeries. With the current annual value of Scotch whisky exports totalling over £4.7 billion, it is a vitally important part of the Scottish and wider UK economy.

The UK’s departure from the EU should not necessarily affect the continuation of PGI status for all of these goods. There are a number of products with PGI’s from countries outside the EU already in existence, like Darjeeling Tea and Norwegian Cod. Non-EU Member States can apply to the EU for a PGI provided certain conditions are met, including the mutual protection of such products via trade agreements. The deal being negotiated right now by David Frost and his team will certainly cover these details. Geographical indications have always been a priority for the EU in its free trade negotiations and Michel Barnier has already demanded that the EU’s own massive PGI list must continue to be protected in the UK after Brexit; so English sparkling wine cannot look forward to being re-labelled as Champagne.

But if Barnier continues to play hardball and the UK crashes out without a deal on 31stDecember this year, the Department for the Environment, Food and Rural Affairs (DEFRA) has prepared a plan for establishing our own UK Geographical Indications scheme post-Brexit. The proposed new UK scheme would broadly mirror the existing EU system, with its own UK logo and appeals process for applicants that faced rejection. UK products currently registered under the EU’s PGI regime would receive automatic protection under the new UK system. However, there is a problem simply rolling over mutual recognition of geographical indications with the EU, as many countries that the UK wishes to negotiate free trade agreements with, like the USA and Australia, operate a system of trademarks instead of PGI’s. Some sort of compromise between the two systems would need to be found. 

It is a bit of a minefield and if the trade negotiations founder in Brussels, Scottish and UK companies or businesses who wish to regain their PGI status in post-Brexit Britain may have to submit their applications to the European Commission as ‘third country’ producers, so that they could continue to use the EU official logo and seek international protection under EU law. So, next time you sit down to a plate of Charles Macleod’s award-winning Stornoway black pudding, just think of the seven long years of bureaucratic hurdles the Lewis company had to overcome to achieve its coveted protected status and how quickly it could all unravel if trade talks in Brussels fail and Britain crashes out of the EU with no deal at Hogmanay. If we wish to ensure that Stornoway black pudding and Scotland’s other unique products continue to enjoy the same status as Champagne, then we must avoid a Brexit breakdown in Brussels.