Out-Law News 2 min. read

Strong whisky laws proposed to stop fake Scotch

The anti-counterfeit laws that prevent fake whisky being sold are to be strengthened to protect Scotland's £2.5 billion Scotch whisky industry, according to the Government.

The Department for Environment, Food and Rural Affairs (DEFRA) has announced a consultation on strengthening the law in relation to Scotch whisky's Geographical Indication protection.

The new laws will divide Scotch whisky into five types and five regions, preventing products from using those regional names unless they were wholly created in that region.

The changes will also control the way that whisky can be advertised, prohibiting packaging that claims that a whisky is from a place or particular distillery when it has not been entirely made there.

The new laws will also restrict the movement of whisky, saying that Scotch whisky cannot be exported in wooden casks or in any form other than properly bottled and labelled.

"This consultation exercise will take us another step closer to strengthening the UK legislation that the Scotch Whisky Association have been telling us they need to help them protect Scotch whisky in export markets," said Hilary Benn. "The proposals will define tightly the descriptions applied to Scotch whisky."

The changes will be made through secondary legislation in spring 2008 after a consultation period later this year. Secretary of State for Scotland Des Browne said that the move is to protect a vital industry.

"Scotch Whisky exports are worth over £2bn to the Scottish economy each year and the industry needs this proposed legislation to help maintain that figure and defend its high-value product from imitation in some overseas markets," said Browne.

Exports of Scotch Whisky reached almost £2.5 billion last year, 4% on up the preceding year and equivalent to one billion bottles of exported whisky. The increase has led Forth Ports to tell the Financial Times that it is planning 150,000 square metres of new warehousing, some of which might be bonded to accommodate the spirits trade.

Brand protection expert John MacKenzie of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the move significantly increased the protection available to whisky distillers.

"This protection has a greater definition to it," he said. "The two significant steps are the regional definitions and the fact that you can't use the name of a distillery unless the whisky came from it. Before, distilleries had to rely on their own trade marks and this makes it easier for them. By definition easier protection is stronger protection."

Many of the industry's problems are with whiskies sold abroad which pretend to be Scotch whisky with no basis. MacKenzie said that the new laws could also help address that problem.

"This is a recognition that it is an important industry, and that it is given the highest level of protection here," he said. "That will strengthen the hand of the Scotch Whisky Association when it is arguing for more protection in other jurisdictions."

Scotch Whisky is currently defined in the Scotch Whisky Act of 1988 and the Scotch Whisky Order of 1990. It is also given the status of protected geographical designation by two European Union regulations, including the Spirit Drinks Regulation.

As well as five geographical regions, the new laws would create five categories of whisky according to the ingredients used in the distilling of a drink. These will be single malt, single grain, blended, blended malt and blended grain whisky.

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