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To:            Trevor Drayton Hunter Valley Vineyards Assoc

 Copy:          Joe Jones, Pokolbin & District Vignerons Assoc

 Date:           19 April, 2002            

 Fax No:      -  emailed

From:           Brian Dalby

Subject:       GI Claims/Addresses on Labels   

No. of pages (including this cover page) :      2

______________________________________________________________

Dear Trevor

Further to discussions at our meeting this week, I submit the following questions and answers for dissemination to members, in an attempt to clarify much of the apparent misinformation existing in relation to geographical indications (GI’s) and addresses.

Q.        Will I have to change the address on my labels if sub-regions are determined and my vineyards or grape sources are not located in that sub-region?

A.        No, not under any circumstances.

Q.        Why is my address an issue then?

A.        Your address (which is mandatory under Food law) may imply to a consumer that the wine has been sourced from that address (or the area surrounding it) if there is nothing else in the description and presentation of the wine to clearly identify the actual source of the grapes. In such cases the address may be misleading, whether intended or not.  (This principle also applies to places implied by a winery name, brand name, logo, map or anything else in a description and presentation of wine)

Q.        Does the issue of a potentially misleading address apply whether the GI has been registered or not?

A.        In effect, Yes.   The principle regarding the misleadingness of an address is the same.

If a GI is registered (ie. protected under the AWBC Act) an address including a registered GI may contravene the clearly defined ‘False’ or ‘Misleading’ provisions of that Act.  If the address place name is not a registered GI, the address may be misleading under the provisions of other legislation, such as the Trade Practices Act and/or State consumer legislation.

Q.                What are some examples of addresses that may be misleading?

A.        Some examples of misleading labels:

(whether or not Pokolbin, Rothbury are registered GI’s)

1.      Pokolbin address, no GI claimed, grape source is Griffith .

2.      Pokolbin address, no GI claimed, grape source is Rothbury

3.      Pokolbin address, Hunter Valley GI claimed, grape source is Rothbury (although a true and legal GI has been claimed, this still does not reduce the implication that the wine is Pokolbin sourced)

(Note: a GI may be claimed either in a ‘formal’ type of statement on say the front label, or it may be claimed even within back label text.)

Q.        How do I solve any potential misleadingness caused by my address?

A.        You must either:

use a GI that identifies the source of the wine and clarifies any potential misleadingness

(eg. In 1. above, a claim of Griffith or Big Rivers (but, a claim of NSW or SEA although true, would not resolve the misleadingness problem, because Pokolbin is also in those GI’s).

In 2. above, a claim of Rothbury would be essential (or alternatively, see OR below)

In 3. above, you could use the claim Hunter Valley provided you also claim Rothbury somewhere in the description and presentation of the wine)

OR you must use some kind of disclaimer to the effect that the wine is not sourced from the implied GI or location eg. ‘this wine has been sourced from various (premium?) vineyards in the Hunter Valley ’ (or NSW or SEA or Zone name etc) ,  This takes the focus away from the GI or area implied in the address.  (This can be a useful aid where the wine may be sourced from differing regions each vintage or bottling).

The above examples would definitely apply if the GI’s were all registered – if Pokolbin and Rothbury were not registered then courts would determine each case on merit taking into account the net effect of the label as a whole.

Q.        Why should I get it right?

A.        If a registered GI is involved, the AWBC will take action to ensure compliance with the AWBC Act. This is to ensure protection of your intellectual property, that is, your registered GI name which is protected in some strong legislation.

If a place name is not registered, the AWBC has a mandate to ensure truth in labelling and other legislation may be used in extreme cases to achieve this.  However, consumers are becoming more conscious of what is (or is not) written on labels, and they may instigate legal action under any of the legislation mentioned above.  As good corporate governance, you should review all your labels to ensure that are not potentially misleading – if a consumer can convince a court they have been mislead, then they will most likely win their case irrespective of whether or not your label is intentionally misleading.

Q.        Is there any difference between domestic and export labels?

A.        No.  All export labels must meet Australian standards before the wine can be exported.

Q.        Who can I go to for help reviewing my labels?

A.        The AWBC is here to help, and prosecutions are only ever considered in extreme cases. Resources dictate that we cannot offer quality control checks for Australia ’s 20,000 or so labels, however we will at any time give an opinion of the legality of your labels if you are in any doubt.

All the information you need can be found on the AWBC website www.awbc.com.au

Look under ‘Regulation’ and you will find a document called ‘Wine Label Law’ – this was revised in Jan 2002 and covers the ‘address’ and many other issues.

While at the website you can research a wealth of other information on legislation, wine law, guide to export, industry statistics, GI maps, trade mark search, AWBC Newsletter, etc etc.

Below is further information from AWBC

We have received rulings on labels from the AWBC Compliance Auditor that relate to the use of certain geographical addresses such as  Pokolbin, Rothbury and Lovedale should sub-regions of those names be gazetted.

This could provide difficulties for producers whose address name was in conflict with their sub-region location.

The sample labels submitted and questions addressed were as follows:-

Sample Wine Labels. 

On the premise that GI subregions have been established in 2001 for Pokolbin, Rothbury, Mt View, Belford, Dalwood & Allandale in the Zone - Hunter Valley, Region -  Hunter. 

Example A 

1. Vineyard is physically in the defined sub-region Allandale
2. Rothbury has been defined as a GI sub-region
3. Address of vineyard is Rothbury
4. Grapes are from defined sub-region Allandale

ROTHBURY HILL

Shiraz

2002

750mL

 12.5% ALC/VOL

APPROX 7.4 STANDARD DRINKS

PRESERVATIVE (220) ADDED 

Rothbury Hill Vineyard

Talga Road, Rothbury,

NSW 2325

Produce of Australia

Does this label comply with the Wine Label Law? YES   /   NO

What changes are required if any to the label to comply with Wine Label Law or other?

Example B 

1. Vineyard is physically in the defined sub-region Rothbury
2. Pokolbin has been defined as a GI sub-region
3. Address of vineyard is Pokolbin as gazetted by the Geographical Names Board.
4. Grapes are from defined sub-region Rothbury

 Smith’s

Hunter

Verdelho

2002

750mL

12.5% ALC/VOL

APPROX 7.4 STANDARD DRINKS

PRESERVATIVE (220) ADDED

Smith’s Wines Pty Ltd

Hermitage Road, Pokolbin,

NSW 2320

Produce of Australia

 Does this label comply with the Wine Label Law?             YES   /   NO 

What changes are required if any to the label to comply with Wine Label Law or other?

Example C

1. Winery is physically in the defined sub-region Belford
2. Belford has been defined as a GI sub-region
3. Address of Winery is Pokolbin as gazetted by the Geographical Names Board.
4. Grapes are from defined sub-regions Pokolbin & Rothbury

Fowler Semillon

2002

750mL

12.5% ALC/VOL

APPROX 7.4 STANDARD DRINKS

PRESERVATIVE (220) ADDED

Fowlers Winery

Old North Road, Pokolbin,

NSW 2320

Produce of Australia

 Does this label comply with the Wine Label Law?             YES   /   NO 

What changes are required if any to the label to comply with Wine Label Law or other?

The AWBC reply, which the HVVA accepts, is reproduced below. Simply stated it says that if your address contains the name of a GI and you are not located in that GI then use of that name in your address on the label would be false and misleading. This presents a problem if the multiple sub-regions are ratified. A single sub-region, particularly if it was Pokolbin, does not present this problem.

AUSTRALIAN WINE AND BRANDY CORPORATION

Compliance Centre:

2nd floor, 18 Dequetteville Tce Date: 16 October, 2001 I PO Box 2733

Email: brian.dalby@awbc.com.au Website: www.awbc.com.au

Fax No: 0265747006 KENT TOWN SA, 5071

From. Brian Dalby Phone: (08) 82282050 Fax: (08) 82282066

Subject GI Claims

No. of pages (including this cover page) : 1

To: Joe Jones.

Dear Joe,

Sorry for the delay in answering your fax of 4^th Oct. which was misplaced by me.

Example A

Under wine law and trade practices law the label would be false and or misleading.

I will not get into all the legal arguments about whether or not you have a TM with or without exclusive use of the name Rothbury as this topic is the subject of much legal debate at present and is unlikely to be resolved in the near future.

It is not the intention of the wine industry to stop the legitimate use of a winery or brand name that includes a place name which mayor may not also be a registered GI. However, when using such a name you are then obliged to clearly state the actual source of the wine if the source is other than that stated or which may be implied.

For the present, at least, our advice is that if you have a place name (.spelt out, or even implied) in your winery name, brand name, logo, back label text or map, or even your very address (which is required by food legislation) then you MUST clear up any misleadingness by claiming a meaningful GI (eg. a GI of 'NSW' or 'Hunter' would not identify the actual source of the wine, nor would it stop the misleadingness). Again for the present time, an alternative to claiming a GI (in this case Allandale) you could make a statement somewhere to the effect that the wine is not sourced from Rothbury. You may notice on some large manufacturers generic wines that they make a statement that the wine has been sourced from various regions in Australia or NSW etc and this takes the focus away from the winery address or other info which may imply a particular region. Any clarification of a misleading situation should be made in a style and manner at least as prominent as the potentially misleading statement.

Example B

same answer as A

AWBC Act only relates to GI's made and protected under that Act and the Geog Names Board names would be totally irrelevant -they would only have relevance if there was NO registered GI and the matter was challenged under common law under Trade Practices Act or other.

Use of the word 'Hunter' is a GI claim. whether intended or not, and while perfectly true and legal, in this case the claim does not clear up the misleadingness of the implication that the wine is Pokolbin sourced .

Example C

Label does not comply.

Wine only comes from where the grapes are grown -winery location is irrelevant as to source of wine under any law.

This example would only be legal if the grapes were at least 85% Pokolbin sourced (as Pokolbin is the only region mentioned in the description and presentation of the wine and therefore a consumer would assume this is where the wine is sourced.

Please see. our website www.awbc.com.au and look under regulations, geographical indications. Also see under information, 'Wine Contact' for copies of our regular newsletter which contains regular articles on labeling and other issues

Kind regards

 Brian Dalby

Compliance Auditor

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