On 17 April 2019 the European Parliament and the Council of the European Union, the two houses of the EU legislature, agreed on the text of the new EU Spirits Drinks Regulation. Regulation 2019/787 replaces Regulation 110 of 2008. The main purpose of the new Regulation is to update the definitions of the various spirit categories, to clarify existing rules and change the rules on the protection of geographical indications so as to bring them more into line with the rules for foodstuff GIs as set out in Regulation 1151/2012.
For geographical indications, parts of the new law will come into effect 15 days from its entry into force (18 May 2019) and after 2 years for others. The European Commission is given 2 years to establish the new digital Register of spirit GIs, known as eAmbrosia (The eAmbrosia data base includes wines as well as spirit drinks). This means that the approach taken in Regulation 110/2008 whereby spirit GIs are recognised when included in the annex to the Regulation, must remain valid till the replacement is fully up and running. There are also some delays in implementation allowing for the migration from the existing registration to the new registration system.
The new Regulation sets out the definition, description, presentation and labelling of spirit drinks, rules on the use of the names of spirit drinks in the presentation and labelling of other foodstuffs, rules on the protection of geographical indications for spirit drinks and the use of ethyl alcohol and distillates of agricultural origins in alcoholic beverages. The new Regulation will eventually repeal all of Regulation 110/2008.
This Article looks at the details of the changes with regards to the protection of spirit drinks as geographical indications, as well as some of the other significant changes introduced.
Although GIs have a long history and are at the origin of all branding, in recent years they have become tied up in commercial disputes between old and new world producers of certain food and drink products. The trade conflict between the EU and many new world wine producing countries has, in the main, been addressed in a series of bi lateral trade agreements balancing EU market access with protection of EU GIs and traditional names in third countries. Similar progress is being made in relation to cheeses and other food and drink GIs in the EU’s trade agreements with certain third countries but, so far, not with the United States.
During this time, the EU has continued to review its own internal rules on the protection of GIs. In 2012 the EU changed for the second time the rules on the protection of food GIs recognising that the reason for protection at the EU level was no so much to ensure the free movement of goods (which remains an objective of the law) but more the recognition that GIs can reflect the gastronomic heritage and traditions of food producers in the EU. There was a significant change to the law in relation to wine GIs in 2013. The reform of the spirits drinks Regulation must be seen in this context.
As well as being part of Europe’s cultural traditions, spirit drinks are also important to the economy of many regions in the EU. The spirit drinks sector is among the biggest contributors to the agri-food economy in the EU with over one million jobs generated by the production and sales of spirit drinks and €11 billion worth of exports in 2017 worldwide. Many of the EU’s spirits drinks are GIs such as Scotch Whisky or Cognac.
The New Rules on Spirit Drinks The new rules of the Spirit Drinks Regulation should contribute to attaining an even higher level of consumer protection, removing information asymmetry, preventing deceptive practices and attaining market transparency and fair competition. Moreover, they should safeguard the reputation which the Union’s spirit drinks have achieved in the Union and on the world market by continuing to take into account the traditional practices used in the production of spirit drinks as well as increased demand for consumer protection and information [see Recital of EU Regulation 2019/787 of the European Parliament and of the Council (‘new Spirits Regulation’)]
The key features of the new regulation are the following:
- the clarification of the production and labelling rules for most categories of spirit drinks, including the definition of maximum sweetening limits for a number of categories at EU level;
- the improvement of the labelling rules that apply in case spirit drinks are combined with other products, such as in composite names (e.g. Liqueur from Whisky or Liqueur from base of Whisky) or allusions (Liqueur refined with Whisky), including mixtures of spirit drinks [Art. 12 of the new Spirits Regulation];
- the creation of a register of the Member States’ control authorities;
- the extended protection of spirit drinks with geographical indications: when used as ingredients, when in conflict with Trade Marks and also against goods in transit in the EU territory;
- the future simplification of registration and amendment procedures for geographical indications: Commission scrutiny to focus only on elements of EU significance, clearer definitions of amendments at national and EU level, fully respecting subsidiarity principle, reduction of the time period for treating applications;
- the registration and amendment procedures will be shortened.
All these new aspects will be analysed in detail in the next paragraphs with reference to the single provisions of the new Regulation.
Part 1: Spirit drinks as geographical indications
The new Regulation recognises that those parts of Regulation 1151/2012 which concern the registration and protection of GIs for foodstuffs do not apply to spirit drinks even if that Regulation has more exhaustive and well tested procedures. In recognition of the success of the procedures for foodstuffs, the new Regulation adopts many of those procedures while taking into account the specificities of spirits drinks.
The definition of geographical indications
Article 3(4) of the new Regulation defines a geographical indication as an indication which identifies a spirit drink as originating in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of that spirit drink is essentially attributable to its geographical origin. This definition closely reflects the definition of GIs in Article 22 of the WTO TRIPS Agreement.
In the EU and in relation to foodstuffs, Regulation 1151/2012 has two definitions of GIs: protected designations of origin and protected geographical indications. The definition of GIs in relation to spirit drinks reflects the foodstuffs definition of protected geographical indications. The definition chosen allows for a greater variety of GIs and in particular those based on reputation, on terroir or on traditional human skills.
Existing spirit drinks GIs
Annex III to Regulation 110/2008 sets out the existing protected geographical indications for spirit drinks. Article 37 of the new Regulation provides that these existing GIs shall be automatically protected as geographical indications under the new Regulation. Once the European Commission has adopted the necessary measures to establish the register of spirit drinks GIs the existing GIs will be placed on that register.
Article 33 of the new Regulation provides that the Commission must establish within 2 years and 2 weeks of entry into force of the new Regulation, a publicly accessible electronic register, to be kept up to date, setting out the protected spirit drinks GIs and providing direct access to the details of the GI set out in the single document and the product specification.
Protection of geographical indications
Article 21 of the new Regulation does not introduce particular novelties with regard to the protection of geographical indications. Similarly to Article 16 of the repealed Regulation, Article 21(2) of Regulation 2019/787 protects geographical indications against: a) any direct or indirect commercial use of products not covered by a registered name where those products are comparable to the products registered under that name or where using the name exploits the reputation of the protected name; b) any misuse, imitation or evocation, even if the true origin of the products or services is indicated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation”, “flavour”, “like” or similar; c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product in the description, presentation or labelling of the product; and, lastly, d) any other practice liable to mislead the consumer as to the true origin of the product.
Unlike Article 16 of Regulation 110/2008, Article 21(3) of the new Regulation provides that geographical indications must be prevented from becoming generic. Also, Article 21(4) extends the protection provided for in paragraph 2 to goods entering the customs territory of the Union without being released for free circulation.
The Court of Justice has on several occasions ruled on the scope of application of Article 16 of Regulation 110/2008. In view of the fact that Article 21(2) of the new Regulation reproduces the provisions of Article 16 of Regulation 110/2008, the rulings of the Court remain relevant to the application of Article 21(2) of Regulation 2019/787.
The word “use” envisaged in Article 21(2)(a) of the new Regulation must be interpreted as requiring that the sign at issue makes use of the protected GI itself in the form in which that indication was registered or, at least, in a form with such close links to it, in visual and/or phonetic terms, that the sign at issue clearly cannot be dissociated from it [Judgment of the Court (Fifth Chamber) of 7 June 2018, The Scotch Whisky Association v Michael Klotz, case C-44/17, ECLI:EU:C:2018:415, para. 29]. Accordingly, it is not sufficient that that the sign at issue evokes in the relevant public some kind of association with the indication concerned or the geographical area relating thereto [Ibid., para. 39]. Also, the Court clarified what has to be intended for “direct” and “indirect” use. In particular, “direct” use implies that the protected GI is affixed directly to the product concerned or its packaging, whereas “indirect” use requires the indication to feature in supplementary marketing or information sources, such as advertisements or documents relating to the product [Ibid., para. 32].
According to the Court’s case-law, the concept of “evocation” envisaged in Article 21(2)(b) of the new Regulation covers a situation in which the name used to designate a product incorporates part of a protected designation, so that when the consumer is confronted with the name of the product the image triggered in his or her mind is that of the product whose designation is protected [Judgment of the Court (First Chamber) of 14 July 2011, Bureau national interprofessionnel du Cognac v Gust. Ranin Oy, joined cases C-4/10 and C-27/10, ECLI:EU:C:2011:484, para. 56]. The Court has specified that a consumer is to be understood as an average European consumer who is reasonably well informed and reasonably observant and circumspect [Ibid., para. 25 and 28].
Moreover, in assessing whether a name constitutes an “evocation” of a protected GI with respect to a similar product, in addition to the partial incorporation of the protected designation, national courts must take into consideration the phonetic and/or visual relationship between those names [Judgment of the Court (Second Chamber), of 21 January 2016, Viiniverla Oy v Sosiaali – ja terveysalan lupa – ja valvontavirasto, case C-75/15, ECLI:EU:C:2016:35, para. 48]. In the absence of any phonetic and/or visual similarity, as well as any partial incorporation, the national court must take account of the conceptual proximity between terms emanating from different languages, since such proximity may trigger in the consumer’s mind the image of the product whose geographical indication is protected [Judgement of the Court (Fifth Chamber) of 7 June 2018, case C-44/17, para. 56]. It is also clear from the case law that for the purposes of establishing that there is an “evocation” of a registered GI, account is not to be taken of the fact that the term at issue is accompanied by an indication of the true origin of the product concerned [Ibid., para. 60].
The Court observed that the expression “any other … indication”, envisaged in Article 21(2)(c) of the new Regulation, includes words, images or a container able of providing information on the provenance, origin, nature or essential qualities of that product [Ibid., para. 66]. This provision must be interpreted as meaning that, for the purposes of establishing the existence of a “false or misleading indication”, account is not to be taken of the context in which the disputed element is used. Otherwise, if a false or misleading indication could nonetheless be permitted because it is accompanied by additional information concerning the true origin of the product, that provision would be deprived of any practical effect [Ibid., para. 71].
Specifications for new spirit drinks GIs
Article 23 of the new Regulation sets out what must be contained in an application for registration of a spirit drinks GI. While Article 17 of Regulation 110/2008 simply required that the application should include a technical file setting out the product specifications, Article 23 of the new Regulation is much more detailed. Under the new rules, the application for registration must include: the name of the applicant and of the authorities who verify the compliance of the product with the product specifications; the product specifications and its publication reference; a single document setting out the main points of the product specifications and a description of the link between the spirit drink and its geographical origin; a declaration of the Member State that it considers that the application meets the requirements settled in the new Regulation.
While Regulation 110/2009 refers to a “technical file setting out the specifications” with which the spirit drink must comply, Article 22 of the new Regulation refers to the “product specifications” as in Regulation 1151/2012. The application must contain information additional to that required by the technical file provided for in Regulation 110/2008. In particular, the new Regulation will require detailed information on the spirit drink, including the raw materials from which it is produced. Also, it will be necessary to indicate any requirements regarding packaging and a justification showing why the packaging must take place in the defined geographical area in order to safeguard the quality or the origin of the product.
Parties entitled to apply for registration
Unlike Article 17 of Regulation 110/2008, Article 24 of the new Regulation indicates the subjects which may be entitled to submit an application for registration. Article 24(1) provides that the application for registration may only be submitted by groups which work with the spirit drink which is proposed for registration. Article 3(6) defines a ‘group’ as an association, irrespective of its legal form, that is mainly composed of producers or processors working with the spirit drinks concerned. This definition includes single producers, a concept which is familiar in the foodstuffs sector in relation to mineral waters.
Article 24 specifies that a single natural or legal person may be deemed to be a group if: a) this person is the only producer willing to submit an application; b) the defined geographical area possesses characteristics which differ from the neighbouring areas; c) the characteristics of the spirit drink are different from those produced in neighbouring areas or the spirit drink has a special quality, reputation or other characteristic which is clearly attributable to its geographical origin. These conditions must exist simultaneously.
Article 24 also provides for the possibility to submit joint applications. Article 24(4) states that if the interested geographical area is a cross-boarder area, several groups from different Member States or third countries may submit a joint application for registration.
The national opposition procedure
Unlike the procedure provided by Regulation 110/2008, Article 24 of the new Regulation requires two opposition procedures: one at the national level and one at the European level. In particular, when the application for registration concerns a GI that relates to a geographical area of a Member State, the latter must check if the application meets the requirements of the new Regulation. As part of this examination, Article 24(6) specifies that the concerned Member State must initiate a national opposition procedure, which must give any natural or legal person, resident or established in the Member State and having a legitimate interest, the possibility to submit an opposition to the application. To this end, the Member State has the duty to ensure adequate publication of the application. If, after assessment of any opposition received, the Member State considers that the application is admissible, it submits it to the Commission.
The Member State must keep the Commission informed of any national judicial proceedings that may affect the registration procedure. The decision to submit the application to the Commission must be made public in order to give any natural person having a legitimate interest the opportunity to appeal. The Member State must ensure that product specification as submitted to the Commission is published with electronic access to it.
Reflecting the provisions of Regulation 1151/2012 the new Regulation gives the competence to Member States the possibility to grant a provisional protection to the name. This national protection applies only in the Member State making the application and, according to Article 25 ceases on the date that a decision on registration is taken at the European level.
Applications from non-EU states
If the application for registration is related to a geographical area in a third country, the application must be submitted to the Commission directly. In this respect, the discipline of the new Regulation does not differ from that of Regulation 110/2008 and is in line with the requirement of non-discrimination highlighted in WTO dispute DS290 EC-Protection of TMs and GIs for Agricultural Products and Foodstuffs.
The EU opposition procedure
Once the Member State, or a third country, has submitted the application for registration to the European Commission, as the authority competent at the EU level, the latter has to scrutinise the application (once again in relation to EU applications). The time limit for carrying out this check has been halved: while Regulation 110/2008 provided for a maximum period of 12 months to carry out the scrutiny, the new Regulation provides for a period of 6 months. However, this time limit has no objective value, as Article 26 provides that in the event that the Commission should exceed the period of 6 months, it just has to inform the applicant of the reasons of the delay.
If the Commission considers that the application for registration is admissible, it has to initiate a second (or first in relation to non-EU applications) opposition procedure by publishing in the EU Official Journal the main points of the product specifications and the description of the link between the spirit drink and its geographical origin. The publication is based on the Single Document which is a summary of the core provisions of the product specification.
Article 27 of the new Regulation provides that within three months of the publication in the OJ, a Member State, a third country or any natural or legal person having a legitimate interest but not from the Member State of origin, can submit a notice of opposition to the Commission. Again, the time-limit has been halved, since Regulation 110/2008 provided that the objection had to be made within six months from the publication. Moreover, Regulation 110/2008 provided the possibility only for natural or legal persons to oppose, and not for Member States and third countries.
Unlike Regulation 110/2008, the new legislation requires that the notice of opposition must contain a declaration that the application might infringe the requirements of Chapter III of the Regulation. In absence of this declaration the notice of opposition is void.
The consultation procedure
Another novelty for spirit drinks but familiar from foodstuffs is the “consultation procedure”. Article 27(3) provides that within two months from the receipt of an admissible reasoned statement of opposition, the Commission must invite those who submitted the opposition and those who submitted the application to engage appropriate consultations for a period that should not exceed three months. For EU applications the consultation is between the objectors and the applicant Member States. For non-EU GIs the consultation is between the applicant and the opponent.
Unlike Regulation 110/2008, the new Regulation sets out the grounds on which an opposition can be based. Article 28 provides that a statement of opposition is admissible only if it is shows that: a) the proposed geographical indication does not comply with the definition provided by the Regulation; b) the registration of the proposed geographical indication would be contrary to Article 34 (homonymous GI) or Article 35 (specific ground for refusal of protection); c) the registration of the GI would jeopardise the existence of an entirely or partly identical name or of a trade mark or the existence of products which have been legally on the market for at least five years.
Article 29 introduces the possibility for the Commission to adopt implementing acts granting a transitional period (up to 5 years) in order to allow spirit drinks, the name of which jeopardises registered GI, to continue to use the designated name. This, only if an admissible statement of opposition shows that the registration of the name would jeopardise the existence of an entirely identical name, of a compound name, or of other similar names which have been in the market for at least 5 years. Moreover, in specific cases, Article 29(2) allows the extension of the transition for a period up to 15 years.
Rejections must be reasoned
If the Commission decides that the conditions for the registration of the GI are not fulfilled, it must inform the applicant of the reasons for the rejection and give it two months to submit observations.
Amendments to the specification
Article 31 allows for amendments to a product specification. Unlike Regulation 110/2009, the new Regulation classifies amendments in two categories: Union amendments and standard amendments. The former requires an opposition procedure at the European level, while the latter is dealt with at Member State or third country level. Union amendments are those which either a) include a change in the name of the registered GI; b) consist of a change of the legal name of the category of the spirit drink; c) risk voiding the quality, reputation or other characteristic of the spirit drink that is attributable to its geographical area; or d) entail further restrictions on the marketing of the product.
Union amendments are approved by the Commission through the same procedure provided for the application for registration.
A standard amendment is any other amendment that lacks the characteristics of a Union amendment.
The cancellation procedure has been renewed and expanded. Article 18 of Regulation 110/2008 simply stated that whenever a GI does not continue to comply with the product specification, the Commission must take a decision and cancel the registration.
Article 32 of the new Regulation is more precise. It provides that the Commission can cancel the registration of a GI either on its own initiative or at the request of any natural or legal person having a legitimate interest. Secondly, it provides that the cancellation is possible not only when the compliance with the requirements for the product specification can no longer be ensured, but also when no product has been placed on the market using the GI for at least 7 years. The same rules regulating the application for registration apply to the cancellation procedure. Lastly, Article 32 provides that the Commission cannot adopt the implementing act without first consulting with the authorities of the Member State or of the third country which had originally applied for the registration of the GI.
The digital GI register
Article 33 of the text of the new regulation introduces a modernization: a publicly accessible electronic register of GIs and of the product specifications which replaces Annex III of Regulation 110/2008.
This approach is in line with the provisions of Regulation 1151/2012 and allows for greater administrative flexibility for the Commission and greater transparency for consumers and in the market place. As the European Economic and Social Committee stated in paragraph 4.6 of its March 2017 opinion on the Commission proposal, the electronic register is a way to “modernise the model, without affecting the rights, obligations or transparency of the system”
Prohibited and generic names
Article 35 specifies which names cannot be protected as GIs. In particular, in addiction to generic names, protection cannot be given when the name could mislead the consumer, and when the production step which give the spirit drink the quality, reputation or other characteristic which is essentially attributable to its geographical origins, does not take place in the relevant geographical area.
Article 3(7) defines a generic name as a name of a spirit drink that has become generic and that, although it relates to the place or the region where the spirit drink was originally produced or marketed, has become the common name of that spirit drink in the Union. It is beyond the scope of this article to examine the legal nature of generic names. In essence, what is and what is not generic is determined in the market place on the basis of the views of consumers and producers (see the second EU Feta case) and can vary from jurisdiction to jurisdiction.
Controls on the GIs
The new Regulation provides that Member States are responsible for monitoring the use of GI names in the market place. Article 39 provides that Member States must control the use of the registered GIs and must take all necessary measures in the event of breaches of the requirements stated by the Regulation. In addiction, Member States must take administrative and judicial steps to prevent or stop the unlawful use of the names of products or services produced or marketed in their territory and that are covered by registered GIs. To this end, Member States must designate the responsible authorities for taking those steps. These authorities must offer adequate guarantees of objectivity and impartiality.
Geographical Indications and Trade Marks
In 2004 the United States lost the argument in WTO dispute settlement that Article 16 of the TRIPS Agreement in relation to trade marks meant that trade marks always trumped geographical indications. The Panel ruling confirmed that the EU system of co-existence of well-established trade marks and GIs in the foodstuffs GI Regulation was TRIPS compatible. The new Regulation mirrors the co-existence rules already applicable to foodstuffs and aromatic wines and sets out when an existing trade mark may continue to be used.
Remaining differences with Regulation 1151/2012
As stated above, the new rules for spirit drinks GIs are modelled on those for agricultural products and foodstuffs laid down in Regulation 1151/2012. However, some differences remain. Some of these differences may well be introduced into the foodstuffs rules in the future.
Article 30 of the new Regulation states that, when the Commission considers that the conditions for the registration of a proposed GI are not fulfilled, it has to inform the Member State or third country concerned of the reasons for rejection and must give it two months to submit observations. Only after the two-months period has elapsed the Commission can, by means of implementing acts, reject the application. Article 52 of Regulation 1151/2012, on the other hand, does not provide for the Commission to inform the applicant of the reasons of its decision, and it does not establish a two-months deadline for the latter to submit its opposition (although it foresees the possibility for the Member State or the third country concerned to object). This difference must be seen more as a deficiency in Regulation 1151/2012 and an innovation in the new Regulation. It can be argued that Regulation 1151/2012 is not compliant with the fundamental principles of EU law which require good administration and the statement of reasons.
Regarding the provisions related to amendments to a spirit drinks product specification, Regulation 1151/2012 does not distinguish between Union amendments and standard amendments. Rather Article 53 of Regulation 1151/2012 refers to minor and not minor amendments. Only if an amendment is qualified as not minor does an application to amend need to follow the procedure for the registration of a foodstuffs GI. In case it’s a minor amendment, the Commission can reject it or approve it directly.
Part II: The definition, description, presentation and labelling of spirit drinks
The definition of spirit drinks
The definition of spirit drinks in the new Regulation is more comprehensive than under the previous rules.
Article 2 of the new Regulation states that “spirit drinks” means an alcoholic beverage which has a minimum alcoholic strength of 15% by volume except in the case of spirit drinks that comply with the requirements of Category 39 of Annex I (Egg liqueur or advocaat or avocat or advokat). This is new.
Secondly, in order to be considered a spirit drink, precise rules need to be followed if the beverage has been produced by the addition of flavourings, colours or other authorised ingredients. In particular, flavours and colours must be used in accordance with the respective Regulations governing their use, namely Regulation 1334/2008 and Regulation 1333/2008.
Thirdly, spirit drinks can be produced also by adding foodstuffs.
Lastly, the new Regulation provides that if water has been added, the quality of that water must comply with Council Directive 98/83/EC and with Directive 2009/54/EC. Also, the alcoholic strength of the spirit drink after the addition of the water must comply with the minimum alcoholic strength by volume of 15% or with the minimum provided by the relevant category of spirit drinks as set out in Annex I.
Description, presentation and labelling of spirit drinks
The new Regulation seeks to provide better protection for consumers. Article 9 of the new Regulation requires spirit drinks to comply with the presentation and labelling requirements set out in Regulation 1169/2011 on the provision of food information to the consumer, unless otherwise provided by the new Regulation itself.
Article 10(5) of the new Regulation provides that the legal name of a spirit drink can be supplemented or replaced by: a) a geographical indication (which can be supplemented further by any term permitted by the relevant product specification if this does not mislead the consumer); b) a compound term that includes the term “liqueur” or “cream”.
In addition, Article 10(6) provides that without prejudice to Regulation 1169/2011 and to the specific rules laid down for the categories of spirit drinks, the legal name of a spirit drink can be supplemented by: a) a geographical reference provided for in the laws applicable in the Member State in which the spirit drink is placed on the market; b) a customary name; c) a compound term or an allusion; d) the term “blend”, “blending” or “blended” if the spirit drink has undergone blending; e) the term “mix”, “mixed” or “mixed spirit drink” provided that the spirit drink has undergone mixing; f) the term “dry” provided that the spirit drink does not belong to the category of whisky; that there is no prejudice to the specific requirements laid down in the categories of gin, distilled gin and London gin; and provided that the spirit drink has not been sweetened, unless it complies with the requirements of the category of liqueurs and have therefore been sweetened.
These provisions considerably extend the provisions in Regulation 110/2008. Article 9(5) of that regulation simply provided the possibility to supplement or replace sales denominations with geographical indications that do not mislead the consumer.
Alluding to spirit drinks in other alcoholic beverages
Article 12(2) introduces the possibility to allude, in the presentation and labelling of an alcoholic beverage other than a spirit drink, to the legal name of a spirit drink or to one or more geographical indications, on condition that: a) the added alcohol originates exclusively from the spirit drink referred to in the allusion; and b) the proportion of each alcoholic ingredient is indicated at least once in the same visual field as the allusion, in descending order of quantities used. Also, Article 12(4) specifies that the allusion cannot be in the same line as the name of the alcoholic beverage and that it must appear in a font size which is no larger than half the font size used for the name of the alcoholic beverage.
Article 3(2) addresses the issue of ‘compound terms’. Compound term means, in relation to the description, presentation and labelling of an alcoholic beverage, the combination of either a legal name provided for in the categories of spirit drinks set out in Annex I or the geographical indication for a spirit drink, from which all the alcohol of the final product originates, with one or more of the following: a) the name of one or more foodstuffs other than an alcoholic beverage and other than foodstuffs used for the production of that spirit drink in accordance with Annex I, or adjectives deriving from those names; or b) the term ‘liqueur’ or ‘cream’.
This new definition of compound term changes the provisions of Article 10 of Regulation 110/2008 which was considered too restrictive. Article 11 of the new Regulation now allows the use of compound terms on certain conditions, in essence, that the spirit drink has not been diluted by the addition of water only and that the beverage originates exclusively from the spirit drink referred to.
While Article 12(1) of Regulation 110/2008 provided for the possibility of indicating the raw materials used to produce the ethyl alcohol of agricultural origin or distillates of agricultural origin used in the production of the spirit drink, Article 13(1) of the new regulation introduces a novelty. In particular, the description, presentation or labelling of a spirit drink may refer to the above mentioned raw materials only where that ethyl alcohol or those distillates have been obtained exclusively from those raw materials.
For example, taking into account consumer expectations about the raw materials used for vodka especially in the traditional vodka-producing Member States, in particular Poland and other East European countries, adequate information should be provided on the raw material used where vodka is made from raw materials of agricultural origin other than cereals or potatoes or both. Such other raw materials are for example sugar beet molasses, grapes, fruit mixture, soya, whey or grape marc.
The new Regulation introduces new provisions concerning the description, presentation and labelling of mixtures. In particular, Article 13(4) provides that if a mixture complies with the requirements for one of the categories of spirit drinks set out in Annex I, that mixture must bear the legal name of the relevant category.
The new Regulation gives more value to the origins of the spirit drink. Article 14 provides that in order to indicate the place of provenance of a spirit drink in its description, presentation or labelling, this must correspond to the place or region where takes place the stage in the production process that confers the spirit drink its character and essential qualities.
The use of the names of spirit drinks in other foodstuffs
The new Regulation provides more detailed rules than previously concerning the use of the names of spirit drinks in other foodstuffs and in particular when used as ingredients. The legal framework for the use of spirit drinks in other foodstuffs provided in Article 10(1) of Regulation 110/2008 simply prohibited the allusion to the name of spirit drinks or of geographical indications in the presentation of a foodstuff unless the alcohol originates exclusively from the spirit drink referred to.
Article 12 of the new Regulation provides that, in the presentation and labelling of foodstuffs other than an alcoholic beverages, an allusion (or in traditional GI terms, an evocation) of the legal name of a spirit drink or of a geographical indication is authorised only if the alcohol used in the production of the foodstuff originates exclusively from the spirit drink referred to. The object of this provision is to prevent food processors from using smaller amounts of the spirit drink name and larger amounts of other spirits in the same product while still making reference to the spirit drink name. An exception to this rule is the alcohol present in flavourings, colours and other ingredients used for the production of the foodstuff.
Article 13(2) allows the inclusion of legal names in the list of the ingredients for foodstuff only if the list is in accordance the provisions of Regulation 1169/2011 on food information to consumers.
Finally, Article 13(5) provides that the use of plant raw materials that are also used as the legal names of certain spirit drinks must be present in the labelling of other foodstuff. The use of such raw materials can be used in the description, presentation or labelling of other spirit drinks, provided that such use does not mislead the consumer.
Sugar and Sweeteners
The new Regulation has provisions allowing the Commission to expand, in the future, the range of sweetening products that can be allowed in the production of spirit drinks while at the same time introducing maximum levels of sweetening in different drink categories. There are also clarifications on the type of flavourings that can be used in the production of spirit drinks in general and in certain categories of drinks.
For example, for Rum the sweetening threshold is 20 gr. of sweetening product per litre whereas for Whiskey and Whisky the threshold is zero. For Brandy or Weinbrand the threshold is 35 gr.
Sugar is not an addition before distillation, which is not allowed, but a sweetening at the very end of production, i.e. the finished distillate, before it is bottled. The purpose of this sweetening is to round out the product and make the drink more pleasing to the palate. This sweetening has always been permitted without labelling. However, this was to the detriment of many consumers who did not know that they were consuming sugar. In addition, different maximum sugar levels applied to spirits from different countries.
The sweetening provisions in the new Regulation has been criticised, especially in Germany, where the maximum sugar rates for fruit spirits were significantly increased. In addition, as experts emphasize, good distillers are able to produce very good spirits without sweetening. This, however, costs money and time, while the use of sugar is cheaper. A sweetening that does not aim to make particularly high quality distillates more palatable only serves those who want to sell cheap alcohol in large quantities. It is thus questionable whether the introduction of setting an increased limit on sugar is in the consumer’s interest.
Part III: Categories of Spirit Drinks
The detailed provisions in relation to 44 different categories of spirit drinks from Rum (no 1) to Honey Nectar or mead nectar (no 44) are found in Annex 1 to the new Regulation. It is beyond the scope of this article to review the differences between the provisions of Annex II to Regulation 110/2008 and the new Regulation. An example of subtle but important chances can be found in relation to Rum.
Regulation 110/2008 defined Rums as those spirit drinks produced by fermentation and distillation of molasses or syrup of sugar cane and produced from sugar cane juice. The old Regulation then provided that those rums produced from sugar cane juice could be placed on the market using the name ‘agricultural’ qualifying the rum denomination accompanied by any of the GIs from the French DOMs or Madeira.
The new Regulation defines Rum as including drinks made from molasses, syrup and sugar cane. The new Regulation then provides that: [t]he term ‘agricultural’ may only be used in the case of a geographical indication of a French Overseas Department or the Autonomous Region of Madeira.
The introduction of the word ‘only’ in relation to the use of the word ‘agricultural’ now excludes the possibility that rums from origins other than the French DOMs or Madeira may use the word. It appears that the EU regulator has chosen to give exclusivity to the DOMs and Madeira without examining the extent to which other origins, particularly in the Caribbean, might otherwise be entitled to use the word. Given the common origin of rum from the Caribbean in general this seems both unfortunate and possibly protectionist.
Conclusions The new Regulation is to be welcomed. It brings the rules on the application for, and the registration of, spirit drinks geographical indications into line with best practice from other sectors. In addition, it clarifies existing rules on alcoholic strength, flavourings, sweeteners, the use of compound terms, the use and labelling of raw materials and gives to the Commission the competence to manage better the changes that naturally occur over time.