A year has passed since Donald Trump imposed swingeing ‘Liberation Day’ duties on the US’s trade partners, forcing many to negotiate ‘reciprocal’ trade agreements to avoid damaging tariff hits. Those agreements, besides eliminating duties on imports from the US and dismantling various non-tariff barriers, also obliged partners to eliminate certain countries (read: China) from critical supply chains.
But China was not the only target. The US also used them to try to rollback the European Union’s long-standing project to protect its Geographical Indications (GIs) worldwide. Dozens of countries have signed free trade agreements with the EU, most of which protect its iconic names. This rankles with US cheese and meat producers who want to keep using what they regard as generic names in markets around the world.
The war on terroir
The US, in its framework agreements, has therefore introduced commitments aimed to prevent the EU from securing protection in other countries’ markets or even cancelling protection where already granted. The War on Terroir is not over.
The standard provision of these agreements – with Indonesia, Malaysia, Argentina, and many others – says:
“In cases where country X protects or recognizes a term that identifies a good as a geographical indication, but where there is no given quality, reputation, or other characteristic of the good that is essentially attributable to its geographical origin, country X shall permit the use of the term in connection with US goods.”
There follows an article specifically on cheese and meat terms, whereby country X: “Shall not restrict market access due to the mere use of the individual cheese and meat terms listed in Annex II.”
The annex of the agreements then lists around 40 cheese names and 10 or so meat names, which can be used by US producers marketing their goods in the partner country, irrespective of whether that country may have previously protected such names as GIs.
(With no apparent sense of irony, the GI articles usually come after a ‘belt and braces’ article committing the US partner to the strictest possible protection and enforcement).
Not quite as bad as it sounds
How seriously does this undermine the protection of European GIs on these markets? As Mark Twain (reputedly) said about Wagner’s music, “It’s not quite as bad as it sounds.”
Most of the 50 names are either common terms (e.g., mozzarella, tomme, chevre, blue, chorizo…) and non-protectable per se, or are names that the EU anyway does not seek to protect, even internally – names like cheddar, camembert, brie, or edam. Some of this second category are protected GIs combined with another term, eg, ‘Camembert de Normandie’ or ‘Brie de Meaux,’ but their protection in isolation is not sought. While the EU is not delighted about this category of non-protected terms being relegated to generic status (implying they can never be protected in the future even if circumstances change), it does not change much on the ground.
There are, however, a handful of names in the US annexes that are protected European GIs: Feta, Gorgonzola, Fontina, Asiago, etc. Most of which are also protected in the EU’s existing Free Trade Agreements with, e.g., Chile, Vietnam, Japan, and Mercosur (provisionally in force on 1 May); or should be protected in agreements being negotiated or awaiting approval, e.g., with Mexico, India, Malaysia, Indonesia, Thailand, and the Philippines.
Potential for conflict
There is thus a risk of legal conflict between the FTA protection of EU GIs and the US’s reciprocal agreements removing that protection, declaring the terms generic for the purpose of US exports. Countries removing protection from EU GIs in order to comply with the US demand are also almost certainly in breach of their WTO TRIPS [intellectual property rights] obligations.
The US-Indonesia agreement goes even further, declaring that even for names protected as GIs, the US may practice ‘evocation’, ie, on its products or packaging imply that it is the real (EU) GI, for example, through using blue and white flags or Greek lettering on US “feta” cheese. This despite the fact that the EU-Indonesia FTA, whose entry into force is imminent, prohibits evocation. A legal conflict is in the making.
Similarly, in the US agreement with Argentina, the commitment to allow the US to use names protected by the EU-Mercosur Agreement creates a blatant legal conflict. Argentina’s Congress, when it approves the US Agreement, must either reject that provision or pass it knowing fully that it is illegal and will trigger litigation. The Vienna Convention on the Law of Treaties, which provides generally that a more recent treaty replaces previous ones, does not apply here.
EU must be vigilant
If Argentina toes the US line and breaches the Mercosur Agreement – which has to undergo European parliament ratification next year—either parliament will not ratify it, or the EU will have to challenge Argentina’s breach via the dispute settlement provisions of the agreement, withdrawing trade concessions on, I predict, Argentine beef. A bad start to this FTA.
The EU must be vigilant, therefore, to ensure partners do not breach the terms of their FTAs in any subsequent agreements with the USA. For the numerous EU FTAs under negotiation or not yet ratified – Mercosur, Mexico, Malaysia, Thailand, India, and the Philippines – the EU must warn that failure to protect EU GIs may put their approval in jeopardy.
Trump’s China summit
A particular situation arises with China and Mexico. Trump goes to China soon for a summit. Access for US agrifood will be on the agenda. Trump may well ask China to deny protection to certain EU GIs already protected under the 2021 bilateral EU-China GI agreement or scheduled for protection this year in the second phase of that agreement. China must firmly resist this as a matter of credibility: this being one of the remaining areas where it works cooperatively with the EU in an otherwise difficult relationship.
Similarly, as the US renegotiates in the coming weeks the US-Mexico-Canada FTA, Mexico must not bow to US pressure to deny protection to EU cheeses, meats, or wines slated for protection in the modernised EU-Mexico agreement about to be ratified by the European parliament. If GI protection is denied, this could lead to EP rejection of the treaty.
For the EU, GIs have a political and cultural importance that far outweighs their economic value. They are at the heart of Europe’s culture. And in the FTAs they are sold as the compensation for sometimes difficult agricultural concessions. Any attempt by the US to remove their protection in markets around the world will trigger a strong reaction from Europe – one that its partners should avoid.
This article was originally published in Modern Diplomacy and is reproduced by permission.
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