Food Law Digest - Second edition 2014

30 April 2014

Bird & Bird's Food & Beverage Group is delighted to present the second edition of the Food Law Digest in 2014.

In this issue, we look at some important EU legislative developments in the areas of cybersecurity and trade secrets that will have ramifications for the food & beverage sector, as well as considering the impact and potential risks for food & beverage businesses with consumers switching to crypto-currency.

We hope you will enjoy reading this selection of interesting and informative articles. Please click on the title for more information.

Armand Killan and Mark Abell
Joint Heads of the Food & Beverages Group


The "Saucisson d'Ardenne" strikes back: epilogue of the Sausages War
Isabelle Dupuis, Nicolas Carbonnelle

In the April 2013 edition of Food Law Digest, we reported on the decision of the Belgian Council of State whereby the administrative high court had dismissed an application for annulment of a Walloon Governmental Decree of 7 October 2010 (the "Decree") that granted a protected geographical indication ("PGI") to several types of dried sausages sold under the names “Saucisson d’Ardenne”, “Petit Saucisson d’Ardenne”, “Collier d’Ardenne” and “Pipe d’Ardenne”. According to the Council of State's decision, only dried sausages produced in the Ardenne region can be named “Saucisson d’Ardenne”. Read more>>

Czech Republic

Kofola goes fresh
Andrea Jarolímková, Eva Bajaková

Kofola, a traditional Czech company producing non-alcoholic beverages, has recently acquired its second chain of "fresh" bars Mangaloo. Mangaloo has 17 bars offering fresh fruit and vegetable juices, salads and soups and adds to Kofola's 2012 acquisition of UGO's network of fresh bars. This latest acquisition puts Kofola at number one in this segment on the Czech market, with a total of 37 fresh bars. Read more>>

Spar is leaving the Czech Republic
Andrea Jarolímková, Eva Bajaková

Ahold, an international retail company based in The Netherlands, has entered into agreement to acquire Spar stores in the Czech Republic. The value of the deal amounts to approximately CZK 5,245 million (approx. €191 million). The acquisition has yet to be approved by ÚOHS, the Czech Office for the Protection of Competition. Ahold is also to invest €50 million into the first wave of rebranding. Read more>>

EU & International

Health claims: Complying with article 10(2) is just as important as a glass of milk
Isabelle Dupuis, Nicolas Carbonnelle

On 10 April 2014 in Ehrmann AG/ Wettbewerbszentrale (Case C-609/12), the Court of Justice of the European Union ("CJEU") provided clarification on the requirements of Regulation No. 1924/2006 on nutrition and health claims (the "Regulation") that applied to business operators for the period preceding the adoption of the lists of authorized health claims referred to in Article 13 and 14 of the Regulation and more generally the application of the transitional measures. Read more>>

Cybersecurity and the food supply chain
Toby Bond

Cybersecurity is an increasingly important issue for many in the food and beverage sector as the growing reliance on information systems for business critical functions means cybersecurity incidents can have serious consequences including business disruption and reputational harm. Worryingly the 2013 Global Security Report by Trustwave suggests that 24% of cyber-attacks during 2012 were directed at businesses in the food and beverage sector, second only to the retail sector (45%). Read more>>

The Trade Secrets Directive
Wouter Pors

The food and drinks sector is becoming increasingly technology driven. Novel and functional foods are carefully engineered, often at molecular level. Packaging and dispensing systems may make the difference in competition. Developing such innovations requires considerable investments, which deserve and need protection. For that purpose, it is necessary to be able to claim these results as intellectual property. Probably the best protection is by means of patents, which give the owner an exclusive right to exploit the invention. Read more>>

ICANN provides breathing space for negotiations on '.wine' and '.vin' strings
Rachel Fetches

On 4 April 2014, the Internet Corporation for Assigned Names and Numbers (ICANN) passed a resolution providing a 60 day additional period of time for further negotiation about the '.wine' and '.vin' strings between the applicants, the rights holders of geographic indications and the wine industry. This latest resolution comes after a heated debate following a September 2013 Resolution to take the next steps in delegating the two strings after ICANN's Governmental Advisory Committee (GAC) advised that no additional safeguards were required for the '.wine' and '.vin' strings.
Read more>>


New weapons for indications of origin and localities in France
Anne-Charlotte Le Bihan, Jean Baptiste Thiénot

On 17 March 2014, Law No. 2014-344 called "loi Hamon", introduced various measures relating to french consumer law. One of the particular objectives of this legislation was to improve transparency on the origin and method of production of consumer products and to highlight the local know-how associated with a place of production. Thus, this law has extended the existing protection of geographical indications applicable for natural products to manufactured products and improved the protection of the names of territorial authorities. Read more>>


An evaluation of the applicable sanctions regime for the related violations of Regulation No. 1169/2011 under Italian law
Linda Brugioni

In 2014 most of the provisions of the Regulation (EU) no. 1169/2011 on the provision of food information to consumers (the "Regulation") will become effective. Although the Regulation has been in force formally since 12 December 2011, it provided for a period of "study and understanding" of its content, allowing the food companies to analyse and comply with the rules. The Regulation basically combines two directives in one piece of legislation: (i) Directive 2000/13/EC on the labelling, presentation and advertising of foodstuffs and (ii) Directive 90/496/EEC on the nutrition labelling for foodstuffs. Read more>>


Polish government approves junk food ban in schools
Krzysztof Korwin-Kossakowski

In February 2014, the Polish government finally announced its position on the proposed amendment to the Polish Act on Food and Nutrition Safety (the "Amendment"). As reported in the July 2013 Edition of Food Law Digest, the work proposed on the Amendment began in 2012. However, although the government has indicated its approval of the Amendment, which follows in the footsteps of countries such as England, France and Latvia, it has also expressed some reservations. Read more>>


Slovakia retains popular wine brand Tokaj
Katarina Bujňáková

The producers of Tokaj wine in Slovakia may continue to use the brand name after the CJEU's decision (Case C-31/13P) on 13 February 2014 dismissing Hungary's Appeal and holding that the listing of the Slovak wine name “Vinohradnícka oblasť Tokaj” in the E-Bacchus register of protected designations of origins did not constitute an actionable measure within the meaning of Article 268 TFEU. Read more>>

Amended Slovak Foodstuffs Regulation Effective as of April 2014
Katarína Bujňáková

The amendment to the Slovak Act No. 152/1995 Coll. On Foodstuffs proposed by the Ministry of Agriculture and Rural Development of the Slovak Republic has finally been approved by the Slovak Parliament and became effective as of 1 April 2014. Through this amendment local, regional, including farm foodstuffs and agricultural products, should be promoted and advertised in Slovakia with special information highlighting the Slovak local, regional or farm origin of the goods. The amendment aims to... Read more>>

The Netherlands

No design right protection for heart-shaped tomatoes
Richella Soetens

In 2013, OHIM's Board of Appeal ruled that living organisms as such did not meet the definition of a Community design . The applicant sought to register a heart-shaped tomato as a Community design for vegetables and fruit. OHIM refused the registration as it found that the heart-shaped tomato did not comply with the definition of a design... Read more>>


Potential amendments to Consumer Protection Law
Melissa Murray

Press in Oman have reported that the Oman Majlis Ash’shura (advisory council), have approved a report discussing amendments to the Consumer Protection law which are aimed at controlling prices and preventing commercial fraud. This comes after the Legislative and Legal Committee of the Majlis Ash’shura reviewed the Consumer Protection laws and regulations of surrounding countries such as the UAE and Qatar. 


Bitcoin - Coming to a Restaurant Near You Soon
Mark Abell, Simon Fielder

Chances are that the "Crypto-currency" Bitcoin is more than a geeky fad. It seems likely that it will have a longer term impact on the F&B sector. When the Mill Cafe in Stratford and a number of pubs, such as The Pembury Tavern in Hackney and The Haymakers in Cambridge, started to accept payment in Bitcoin late last year, they received country wide publicity. It was something of a novelty. A "Geek-centric" PR gimmick perhaps. Several months later, despite the high profile failure of MtGox exchange in Japan in March, the increase in the use of Bitcoin in the F&B sector has continued unabated. Read more>>

Greek yoghurt protected by extended passing off
Rachel Fetches

The English Court of Appeal has dismissed the appeal of a yoghurt maker (Chobani) against a High Court decision that the sale in the UK of yoghurt made in America under the designation 'Greek yoghurt' constituted extended passing off. The Court of Appeal (Kitchin LJ giving the lead judgment) reviewed the law on extended passing off, which under certain circumstances, provides protection to traders who share collective goodwill in a trade mark. In this case, the High Court had found that a substantial part... Read more>>

United Arab Emirates

Amended UAE Food Law coming soon
Melissa Murray 

Legislation presented to the Federal National Council in early April 2014 sets tough new penalties for “food safety offenders”. Penalties of imprisonment and fines up to Two Million Dirhams are proposed for those who deal in fake, harmful or rotten foods, and other fines for those foods which contain alcohol or pork products without prior approval. Although the draft law is yet to be released to the public, press articles suggest additional fines for misleading consumers through publishing false descriptions or using incorrect labels. There is also discussion of additional labelling requirements for genetically modified foods.

Draft Anti Commercial Fraud Law moves closer
Melissa Murray

The draft anti-commercial fraud law contains a range of measures designed to fight both goods and services fraud and will set up for the first time a single body responsible for combatting counterfeiting across the UAE. Under the draft law it will be an offence to import, sell, display, market, or possess counterfeit goods. However, the extent to which ‘lookalike’ goods that don’t use the brand owner’s registered trade mark will be covered by the anti-counterfeiting provisions is unclear. We expect the draft law to come into effect before the end of this year.