Neeraj Thomas

PGI is an EU quality system certification scheme created for consumers’ peace of mind which covers regional and traditional foods whose authenticity and origin can be guaranteed. It acts as a form of intellectual property providing an important layer of protection to stop imitators from riding on the coat-tails of well-known brands and products.

It is open to Scottish producers with PGI status to raise court proceedings against any party seeking to illegally imitate their product. Such court actions would prevent further infringement and enable the PGI producer to make an appropriate claim for financial damages and legal costs. Equivalent court remedies are also available in the English and EU member state courts.

PGI status plays a critical role in helping uphold the value of the Scottish food and drink sector, worth an estimated £14 billion a year to around 19,000 businesses employing over 115,000 people.

Ayrshire Earlies join 14 other Scottish food and drink products, including Scotch Whisky, Stornoway Black Pudding, Scotch Beef and the Arbroath Smokie, which are protected by the regime.

But the prospect of a no-deal Brexit is creating growing concerns that Scottish and other UK food and drink producers could lose their current level of protection.

Should the UK government manage to depart the EU with a negotiated deal it is likely that part of such an agreement would allow for all existing Scottish PGIs to continue to be protected in both the UK and EU. Likewise, current EU PGI producers would continue to be protected in the UK under reciprocal arrangements.

In the event of a no-deal Brexit, the future of PGI status is far less clear. In that scenario it is likely the UK would seek to set up its own scheme, managed by DEFRA, which would mirror the current EU regulations. Such a scheme would be open to all producers, whether based in the UK, EU or beyond.

While all current UK PGIs would very likely continue to be protected under this new UK-wide scheme, many unanswered questions remain. The protection that is currently on offer to UK producers across the wider EU and to their EU counterparts in the UK is completely unclear. We could see the EU grant all current UK PGIs automatic protection under the existing scheme under the condition that DEFRA put in reciprocal arrangements in the UK for EU producers. However, that has not been confirmed and there is material uncertainty as to whether this will happen.

It is also conceivable that all current holders of UK PGIs would have to reapply for EU protection. DEFRA have offered support and guidance but this could be a costly and time-consuming affair. In the event that reapplications are required, we could see a backlog leading to a period where UK PGIs are unprotected in the EU as they await their application being granted. Such a delay could allow copycat imitators or products of a lesser quality to fill the void until PGI protection is restored. Other forms of IP protection, including trade marks, would very likely still apply and help provide some degree of safeguard against this, but there is little doubt that the value of PGIs would be diminished.

The government needs to fully grasp the importance of the PGI regime to the Scottish and wider UK food and drink sector. Regardless of how Brexit is ultimately pursued, the legal protection afforded by the scheme must be retained. Any dilution of this could see producers losing market share to lesser rivals and an eradication of a quality brand or product which has often taken decades to establish.

Potato farmers in Ayrshire along with all the other quality producers across Scotland will struggle to see an upside to that outcome.

Neeraj Thomas is an of counsel at CMS