Law For Food: The law affects what you eat. What you buy to eat affects the law.

A Bright Side

Is American Cheese the new American Wine? Is the faltering dollar good for the domestic artisanal food industry — or at least those parts of it which don’t rely on imports?

What has been good for wine has been good for cheese. The rising wealth and strong dollar of the 1990s sent Americans flocking to Europe, returning with a new understanding and appreci­ation of continental eating. Food has emerged as hip entertainment, with its own vibrant press, TVnetworks, and rock-star chefs. Movies about food and wine have found large, sophisticated audi­ences (“Eat, Drink, Man, Woman,” “Sideways,” “Big Night,” “Like Water for Chocolate,” “Ratatouille”). Increased concern for health and a growing sus­picion of conventional agriculture, spurred by crises like mad cow, bird flu, and tainted spin­ach, have focused the nation on small-scale local farming and the sustainability and traceability of our food supply. Meanwhile, Whole Foods Market has planted 263 stores around the country (many through acquisitions of regional chains) since the first opened in 1980. And who could have pre­dicted the French Paradox—the notion, according to a bestseller about the eating habits of France, that you can eat plenty of fat and stay slim? Or Dr. Atkins urging eager dieters to eat pork and but­terfat? More recently, the flaccid dollar and robust euro have made American wines and cheeses seem veritable bargains.

I have for a while maintained that there is more excitement and energy in the U.S. artisanal cheese industry than there is in European cheese. In part, this is surely due to our having farther to go: try speaking, reading, or typing the words “American cheese” without picturing something gummy, preternaturally orange, oversalted and individually wrapped.

However, I also suspect that european cheesemakers and regulators have done the industry a disservice in the long term due to the AOC/PDO/DOP/DOC system of trademark regulation. (Each of these terms, in a different language, stands for “Controlled Name of Origin” and I shall refer to them all under the term “DOP” for simplicity’s sake.) The DOP system sets characteristics that must be met if a product is to be referred to under a traditional name; i.e., if you want to call your blue cheese Stilton you have to use milk from these sorts of cows, and make it into wheels this big and age them for this long and so on. In a number of cases, qualification is tied to a region: you can’t call your blue cheese Rocquefort, for instance, unless you have made it from sheep’s milk and then aged it in caves in the department Aveyron, where they will be exposed to the airborne, naturally-occurring penicilium rocqueforti that lives there. This system allows for the same sort of protection that individual firms get through trademark law, but enables the protection to be shared by every firm that makes a product meeting the qualification.

However, there are times and occasions in which the DOP system can backfire. Because the definitions are backed by law, it can be difficult to adapt them to new circumstances. Last year, Newcastle Brewing Company ran into this problem. Newcastle had successfully petitioned for the creation of a DOP defining “Newcastle Brown Ale” as ale that was, inter alia produced in the city of Newcastle-upon-Tyne. When the brewco decided to move its operations across the river to Gateshead, it was required to petition again to expand the legal defintion of “Newcastle Brown Ale” so that ale produced in its new facilities could be marketed under the same label.

As another example: the DOP for Stilton was written some years ago and requires that “Stilton” be made with pasteurized milk, despite the fact that pasturized Stilton is a historical latecomer, and that the cheese had been made with raw milk for centuries prior to industrial cheese production. When Joe Schneider and Randolph Hodgson revived the traditional stilton recipe, they were prohibited by law from calling the product “Stilton” and instead have had to market it under the name “Stichelton”, which is the Middle English name for the city of Stilton.

DOP protection has done some good in protecting quality standards for traditional food products, and I certainly do not oppose its use. However it seems to me that, absent DOP protection, artisanal cheesemakers in the U.S. have more opportunities to innovate in their cheesemaking techniques which are driving quality and variety in American artisanal cheesemaking. I have little doubt that if the DOP system were introduced into the U.S., it would in short order be co-opted by industrial producers, and thereby used to constrain this innovation, and I have some fears that European cheesemaking, which enjoys DOP protection, doesn’t have the same opportunities to innovate.


2 Comments so far
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What has D.O.P. to do with product ‘innovation’?

DOP for me means that I know what to expect, as a customer. How often was I disappointed by a cheese called ‘Gouda’ everywhere in the world, that didn’t have the character of the cheese I’m used to eat with that label.

There are a lot of variables in play with making cheese. To name a few:
– Climate (to age the cheese)
– What the Cow eats (and get extra)
– Type of Cow…
– Raw-milk vs. pasteurized
– Type of Rennet used

A number of those variables are geographically from origin.

There is an interesting development in the diversification/labeling of cheese in the Netherlands (and maybe in more area’s of the world). Trying to separate artisan form industrial cheese.

An example:
In the early days cheese was made on the farm from cows that were on the farm. It was the only method to preserver value known to men at that time.
The label ‘Boerenkaas’ (Farmers-cheese litt.) is now protected for cheese only made by self-owned cows. It clarifies for the consumer the taste.
There is a taste difference because of the use of evening-milk and morning-milk and the lack of standarisation of the milk.

I hope it will preserve an artisanal ‘industry’.

Btw. DOP has enriched my vocabulary with the word ‘typo’. Like ‘typo Gouda’, ‘typo Emmentaler’ that I see here in the shops (Latin America).

I put the label on everything that I don’t completely trust.

Thanks for the Blog. Very good Idea.

Comment by Paul


You are right that DOP is not directly about innovation. DOP is a nationalized trademark, and trademarks, like other forms of intellectual property rights, have the danger of restricting innovation if the rights are defined and policed too aggressively.

Trademarks make economic sense when they restrict consumer search costs. Consumers incur search costs when they are not confident that the goods they are considering are of the quality that they expect: you buy Ajax cleanser not because Ajax is necessarily better than the generic cleanser, but because the brand mark enables you to be confident that the cleanser you are getting is of the quality you are expecting. Generic cleanser is priced more cheaply: the price does not reflect the product’s lack of quality, but rather the consumer’s lack of confidence in the product’s quality.

At the same time, trademarks can be used to keep innovators out of the market. If I were a pizza shop owner, and I were able to defend a trademark in the word “pizza”, I could make it difficult for other pizza shops in my market to do business because they couldn’t call their product “pizza” even if it were identical to, or better than, the pizza that I am selling. For this reason, courts do not allow trademark protection of generic terms.

DOP is an exception to that doctrine: DOP cheeses, or wines, or hams are generic products which are protected from open innovation and competition. I cannot call my blue cheese roquefort no matter how good or similar it is to AOC Roquefort. It is very important, therefore, to define a DOP narrowly: this protects innovation within the genre (say, ewe’s milk blue cheeses) from infringement claims, while also protecting DOP qualifying products from dilution of the quality claims of the DOP.

It has been a while since I wrote this piece, but if I recall, my point was that DOP protection is a legal and economic tool that can be used well or poorly depending on how it is wielded. I would oppose the introduction of DOP protection for a product such as American Cheddar, because the major U.S. cheddar producers could probably see to it that the final DOP definition required mechanical production of cheddar, ruling out small, high-quality handmade cheddars such as Fiscalini Bandage Cheddar in California and Cabot Clothbound Cheddar in Vermont.

The U.S. handmade cheese industry is experiencing something of a renaissance today, and I believe, for the reasons above, that the absence of DOP protection in the U.S. is a factor which enables that renaissance. I think that once the market settles down a bit, ten or twenty years hence, it may make sense to talk of DOP protection. I hope that my answer has been responsive.

Comment by lawforfood

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