The Total Greek issue
Why a UK court sided with Greece in the yogurt row. Peter Bennett, partner at food industry law firm Roythornes, explains the reasoning behind the decision.
At the end of March, the UK High Court upheld a claim brought by the manufacturers of Total Greek Yogurt, Fage, against US yogurt giant Chobani. The claim centred on whether strained thick yogurt manufactured outside Greece could be called Greek yogurt or not. By ruling in favour of Fage, it is now established that products labelled as Greek yogurt in the UK must have been manufactured in Greece.
The High Court was of the view that a substantial proportion of buyers of a product described as Greek yogurt “think it is made in Greece” and that it mattered to those buyers that the yogurt did in fact come from Greece. It also stated that the back of pack print informing purchasers that the product was made in the US was “nowhere near sufficient.”
Chobani’s misrepresentation was, therefore, likely to lead to the loss of distinctiveness of the term Greek yogurt and Chobani were forced to remove the term from its packaging.
While the court was considering its ruling, Danone released its new Danio brand Greek yogurt product onto the UK market. The High Court issued an interim injunction against Danone until the Chobani case had been decided. In light of this, Danone removed the product from the market. We are yet to see what steps Danone will take now that the final judgment has been made but given that it is not made in Greece, the only option Danone has is to permanently describe the product as something other than Greek yogurt.
The crux of Fage’s success is that Greek yogurt is made in a particular way and, by attributing the term Greek yogurt only to products that are made in Greece in that particular way, a substantial proportion of buyers would think that Greek yogurt was special. The fact that Fage has won this legal battle will be seen as a boost, especially seeing as the UK yogurt market is estimated by Kantar Worldpanel to be worth £1.4bn (€1.6bn) per annum and growing.
Producers of other geographically linked foods have tried to obtain protection in the past and some have succeeded, albeit by different means to Fage. Champagne, Parma ham, Melton Mowbray pork pies and the humble Cornish pasty have all benefited from Protected Geographical Indication (PGI) or Protected Designation of Origin (PDO) orders.
PGIs and PDOs are usually granted to protect regional products which have not become generically available or copied. In order to qualify, products must possess “a specific quality, reputation or other characteristics attributable to its geographical origin” and production, processing or preparation should take place within the defined geographical area. Had Fage chosen to go down this route it may have been unsuccessful, as the current EC Regulation (Regulation 510/2006) states that it would only be ‘…in exceptional cases…’ where a country could be used to describe a foodstuff. Examples of this which stand out are Scotch whisky and Columbian coffee.
Unfortunately, it is not just countries that lose out. An attempt by the Lincolnshire Sausage Association to secure PDO status failed, as Defra felt that the name had become generic and also because the association could not show that the reputation of Lincolnshire sausages was linked to the name and attributable to the county of Lincolnshire. Perhaps Colchester oysters will have more luck with their application – we watch this space.
Peter Bennett is partner at leading food industry law firm Roythornes. For further information please visit www.roythorne.co.uk