The Malta Independent 22 July 2019, Monday

Opinion: Making a case for the protection of the Maltese Ġbejna

Saturday, 22 June 2019, 10:54 Last update: about 30 days ago

Emma Portelli Bonnici

When one first thinks of “law”, the first thought to pop into one’s head would likely not be “food”. That being said, foodstuffs and drinks (especially wine) have quite a colourful history of legal protection dating all the way back to the 1800s.

Geographical indications (GIs) for wine, spirits, agricultural products and foodstuffs are protected as sui generis intellectual property rights that are essentially proof that certain products possess certain qualities, characteristics or have a reputation that is primarily attributable to their geographical origin and their method of production.

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GIs make it easier for consumers to identify certain products and differentiate them from others whilst offering an additional layer of protection to the item in question. GIs aim to protect consumers against ‘food fraud’. There’s a good reason you’ve (hopefully) never purchased Italian champagne or French scotch whisky from your local supermarket – these are complete misnomers. As their names suggest, Champagne must necessarily hail from the Champagne region of France for it to be labelled ‘Champagne’, whilst scotch whisky must, similarly, necessarily have been produced in Scotland for it to bear that label.

Way back in the 1800s, laws had already been put in place in certain areas of the world protecting against false indications of a product’s origin. The French, quite predictably, have always been very protective over their wines. After the industrial Revolution at the end of the nineteenth century, producers became more inclined to protect their product identities.

The first time geographical indicators of origin featured in modern day legislation was in the Paris Convention of 1883. The protection afforded back then was not the same as the protection afforded nowadays, but it provided a fairly good starting point, requiring signatories to the convention to put a stop to fraudulent and deceptive representation in this regard.

Moving a step forward, the Madrid Agreement of 1891 stated that any misleading indications falling within the provision of such would be liable to seizure.

Beyond Madrid, the Lisbon Agreement of 1958 provided the first foray at an international registration system for geographical indications. The World Intellectual Property Organisation (WIPO) created an international registry granting protection to new products as well as those already protected by the systems present under Paris and Madrid.

The next step in the timeline was the TRIPS Agreement in 1994. This agreement ensured that members were to provide legal means in order to ensure the fulfilment of their obligations to protect these GIs under the Agreement. TRIPS also provided an added layer of protection for wines and spirits, ensuring that the labelling and marketing of these products could not include geographic names of territories from which they did not actually originate (there goes the idea of Maltese champagne again).

Finally, in 1992, the first comprehensive EU legislation was published dealing with the protection of geographical indications and designations of origin for agricultural products and foodstuffs (an older version of today’s foodstuffs regulation).  Beyond this first EU foray into this type of protection, there were many amendments made to this first draft, as well as additional regulations providing specific rules relating to wines and spirits.

The Treaty on the Functioning of the European Union, or the TFEU,contains a list of all the agricultural products that fall within the scope of the Regulation.

EC Regulation 1151/2012, the Foodstuffs Regulation, expands upon the list found within the TFEU through the inclusion of another list in its own Annex I.

While the EU does not oblige member states to extend this protection to any of our produce, the main aim behind so doing would be to protect the reputation of these Maltese products and promote further agricultural activity. Malta, already 15 years into EU membership, does not have any registered PDOs or PGIs in this sector, although there have already been discussions on the protection of the Maltese Ġbejna, and possibly even more Maltese products in the pipeline.

The fact that anyone can currently produce what we call the Traditional Maltese Ġbejna and market it as such is doing quite a disservice to the years and years of tradition that have gone into producing this Maltese delicacy. Can you imagine the riots in our streets if you could suddenly buy square “ġbejniet” made of any pasteurised milk, produced outside of our shores, from any supermarket in Europe? While riots may be a bit of a stretch, it would still be a shame to lose our grip on something that is ours, and not for lack of thestructure within which to do so, but due to our continued inaction to actually carry this forward. 

The Ġbejna is not the only traditional Maltese food warranting protection, what about imqaret? Pastizzi? Tadamimqadded or basal tal-pikles, for example? We ought to take advantage of the schemes offered by the EU for the protection of our gastronomic heritage.

 

Emma Portelli Bonnici is a Junior Associate at Fenech & Fenech Advocates. This article is not intended to offer professional advice and you should not act upon the matters referred to in it without seeking specific advice.

 

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