MeltonMowbray v NorthernFoods

15 May 2006

Emily Bennett

March 2006

Signalling the end of a long fight, the Court of Appeal on 26 January 2006 denied Northern Foods the right to appeal against the Department for Environment, Food and Rural Affairs (“DEFRA”) and the Melton Mowbray Pork Pie Association’s application to the European Commission under the Geographical Indications (GI) system.

The Melton Mowbray Pork Pie Association applied under the scheme following 1992 EU legislation[1] brought in to protect food names with a geographical or traditional recipe basis. The scheme aims to guarantee the authenticity and origin of traditional and regional foods, with the result that only products complying with the scheme requirements (for Protected Geographical Indication (“PGI”) foods the geographical link must occur in either producing, processing or preparing the food) may call themselves by the protected names.

The Melton Mowbray pork pie market is worth approximately £51.7m per year. Approximately 24% of this market share belongs to Northern Foods, 62% to their main competitors, Samworth Brothers, and the remainder to smaller manufacturers throughout the country. Northern Foods objected to the application for PGI status by the Association on the basis that the ‘geographical area’ designated by the application covered a 1800 square mile area, including parts of Leicestershire, Nottinghamshire, Lincolnshire and Northamptonshire, and that such an area was arbitrary and overly wide. Northern Foods’ particular remonstration was that the wide definition ensured that Samworth Brothers (who manufacture over 99% of the pies produced by the Association) would fall within the relevant area, but Northern Foods’ two production sites, in Wiltshire and Shropshire, would not.

In an application for judicial review of DEFRA’s decision to refer the Association’s application to the EC, Northern Foods submitted that DEFRA had a duty to review the Association’s application and that it might be suitable to seek a preliminary ruling from the European Court of Justice pursuant to the EC Treaty (Maastricht) Art.234. Particularly, Northern Foods claimed that as article 2 of Council Regulation 2081/92 refers to a specific place and the same ‘geographical area’, the defined area should have been limited to Melton Mowbray and the immediate surrounding vicinity.

Mr Justice Crane ruled[2] that there was no need to seek a preliminary ruling from the ECJ as it was the duty of the instant court to rule on the lawfulness of DEFRA’s actions. Further, the EC application should proceed and that the ‘defined geographical area’ for the purposes of Council Regulation 2081/92 could be different from the specific place or region where the foodstuff originated. Northern Foods applied to the High Court for permission to appeal the decision, but was refused. It then applied to the Court of Appeal. The Court of Appeal also recently refused permission.

Melton Mowbray Pork Pies now look set to join Stilton Cheese, Scotch Beef, Whitstable Oysters, Cornish Clotted Cream and Newcastle Brown Ale as the next local UK food to gain GI status. If granted, the pork pies will be the first recipe-based product to achieve this protection.

The defining features of a Melton Mowbray pork pie, according to the Melton Mowbray Pork Pie Association, are said to be the “fresh, grey pork inside and distinctive bow shaped sides caused by the collapse of the pastry during cooking”. These characteristics are thought to be due to the use of fresh pork (giving the meat a grey colour as opposed to the pink colour that occurs when using cured pork) and the local method of baking the pies free-standing, giving them a unique shape. Pork pie makers outside the area have been accused of using metal hoops to give the pies a standardised look.

If the EC accepts DEFRA’s referral and grants PGI status to Melton Mowbray Pork Pies, consumers will not know whether their pie was produced in Melton Mowbray itself or elsewhere in Leicestershire, Nottinghamshire, Lincolnshire or Northamptonshire. They will be safe in the knowledge, however, that it was definitely NOT made in either Shropshire or Wiltshire. Northern Foods will face the tough decision of whether to change the name of its product – thereby opting out of the fastest growing section of the pork pie market – or relocate its premises.

Published in World Intellectual Property Report, March 2006

[1]Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs; Council Regulation (EEC) No 2082/92 of 14 July

[2][2005] EWHC 2971 (Admin)