Home is where the mark is: An overview of the use of geographical indications in the Scottish food and drinks sector

With discussion in the ‘Scotch’ whisky industry turning to whether it is time to create more specific geographical indications (“GIs”) for Scotland’s whisky ‘regions’, we take a look at GIs, the benefits they offer and how valuable they can be to premium Scottish producers.

What are GIs?

A GI is a mark used on a product of a specific geographical origin to certify the product as originating from that place. This is because the quality, characteristics and reputation of certain products are inextricably linked to their places of production. Unlike other types of intellectual property (“IP”) protection, a GI will apply to any products in the relevant category which were produced according to the standard set out for the GI. GIs are also protected on a jurisdictional basis, meaning such protection can only be evoked in jurisdictions where the GI is recognised.

In Scotland, GIs are especially key in the food and drinks sector. Scottish GIs for food and drinks comprise 15 of the 56 registered UK GIs. These include Scotch Whisky, Scotch Beef, and Scotch Lamb.

Why are GIs useful?

Like other IP rights, a GI legally protects against the name being used on products which do not meet the applicable standards. This prevents unscrupulous producers from attempting to associate their products with those which are authentically produced in the relevant location and to the relevant standard. The GI therefore assures customers of the provenance of a product, something which is increasingly important in an era of mass production and conscious eating.

This is also a valuable marketing tool for producers, who can use the GI as a demarcation of premium quality. This helps to create and bolster international renown, and to validate comparatively high price tags on premium items.

Scotland’s food and drink industry has grown rapidly in recent years, particularly in international markets, with products like Scottish Salmon and Scotch Whisky, continuing to grow from strength to strength and gaining international acclaim. Almost 30% of all UK food and drink exports originating in Scotland. Scotch Whisky accounted for 75% of Scottish food and drink exports in 2021. In the same year, the value of Scottish food and drink exports rose to £5.9 billion. This clearly demonstrate the importance of this vibrant sector to the Scottish and wider UK economy. This established value has benefits for producers, but it can also render brands attractive to imitators. GIs offer a unique method of preventing such attempts at unfair trading. The regulatory body for the production of Scotch Whisky (the Scotch Whisky Association) for example, are said to have around 60 cases for the protection of Scotch Whisky in progress at any given time, demonstrating both the scale of the problem of imitation, and the value of GIs in preventing this.

No matter what size of business you operate, if at least one of your production, processing or preparation stages of creating your food or drink product is particular to a specific area, it is worth considering whether a GI could be obtained. As a producer it is also important to be aware of what GIs are currently in operation so that you don’t fall foul of using a protected name without the right to do so.

How are GIs protected in Scotland?

GIs in Scotland can currently be protected by both the EU and UK schemes, as the EU law in this area was retained following Brexit. Following the end of the transition period in December of 2020, all existing EU registered GIs for UK products were therefore automatically registered under the UK scheme. In the UK, GIs are protected under the UK PGI Scheme, which is split into 5 branches depending on product type. In order to protect a new product in the EU however, UK producers must first secure protection under the UK schemes.

With the ‘Sunset’ date for retained EU law approaching at the end of this year, the legal landscape in relation to IP in the UK may change further. The ‘Sunset’ date is the date on which all retained EU may be deemed revoked in the UK, under the Retained EU Law (Revocation and Reform) Bill 2022 (should it pass in the current form). While the UK geographical indications regime is not directly retained EU law, this may be impacted by changes to other key pieces of EU law relating to the enforcement of IP rights, such as the E-Commerce Directive.

Is it time for change in Scotland?

There is some discussion in the Scotch Whisky industry around whether the current GIs available in Scotland, are specific enough to protect the interests of Scottish producers. This is particularly so where the specific region of origin of whisky is extremely important in regard to flavour profile, branding and production methods. This is also likely to be the case with different producers of other GI protected foods and drinks in Scotland and could help to pave the way for potential future discussions around making other protected Scottish products’ naming conventions geographically specific. Indeed, regional Scottish GIs already exist, in part, with products such as Arbroath Smokies, Stornoway Black Pudding and Orkney Scottish Island Cheddar having protected GIs status; but could this be taken further?

With so many premium Scottish goods on the market, and the continued push to demonstrate the provenance of high quality food and drink products, an increase in Scottish GIs may well be something to watch out for in the coming years.