What can emerging global spirits regions learn from how Scotch is protected legally?

As the Worldwide Distilled Spirits Conference arrives in Edinburgh, Peter Ranscombe explores the wonderfully geeky world of geographical indicators and collective trademarks.

Whisper the word ‘Scotch’ in bars and bottle shops around the world and your listener’s eyes are likely to light up with excitement. Scotland’s national drink has a hard-won reputation for quality, with ‘Scotch’ becoming almost synonymous with ‘whisky’ at high-end establishments globally.

Consistency is the name of the game. In the UK, the Scotch Whisky Regulations 2009 ensure the product is made from cereals, water and yeast. It must be distilled and matured in Scotland for at least three years and bottled at a minimum strength of 40% alcohol by volume (ABV). Those legal requirements are used to maintain standards, making sure consumers get consistency bottle after bottle.

Part of that prestige also comes down to legal protection. ‘Scotch whisky’ is a registered geographical indication (GI) in many overseas markets, including the EU. In others, it’s registered as a certification trademark or collective trademark.

Andrea Fujarczuk, professor of artisan distilling at Niagara College in Canada, will be exploring GIs at the Worldwide Distilled Spirits Conference (WDSC) – one of the largest gatherings of brewers and distillers on the planet – held in Edinburgh this week. Her presentation, entitled ‘Terroir or Trade Barrier? Guiding Principles for Implementing Spirits Geographical Indications’, will weigh up the pros and cons of GIs and trademarks, and ask whether defining a GI too early can stifle innovation.

“Scotland has a nested GI; it has both a national GI but also regional GIs, which I think is aspirational,” Andrea told the Journal, pointing to our three whisky regions – Highland, Lowland and Speyside – and our two localities, Campbeltown and Islay. “Islay is a great example because it has an identifiable flavour, it has identifiable processes, it is attached to the terroir – it has everything you want in a GI for the consumers and for the producers. It’s established a cult following, and that is really the ultimate goal.

“The difference for emerging regions is that they don’t necessarily have the history and heritage, and so they need to take that time to figure out what makes them special. Japan has been making whisky for 100 years but is only now creating a GI.

“A lot of regions will race to create a GI because it avoids fakes and helps with trade agreements, but if you start a GI too fast then you’re also sacrificing a lot as well because they can stifle innovation and their high cost creates a barrier to entry, which means you may not reach the critical mass of producers needed to flourish long-term.”

Trademarks as an alternative to a GI

Andrea cut her teeth in the winemaking industry in her native Canada before completing her master’s degree in business administration (MBA) at the Royal Agricultural University in Cirencester, Gloucestershire and working for drinks giant Moët Hennessy, which owns Scotch whisky brands Ardbeg and Glenmorangie, as well as cognac distiller Hennessy, New Zealand wine label Cloudy Bay, and champagne houses stretching from Dom Pérignon and Krug through to Moët & Chandon and Veuve Clicquot. She’s now poised to complete her doctorate in business administration (DBA) at Heriot-Watt University in Edinburgh as a distance-learning student, where GIs have formed part of her research into what makes consumers choose which whiskies to buy.

As an alternative to GIs, Andrea points to the success of Ontario’s Vintners Quality Alliance (VQA), a certification trademark and regulatory system that certifies each wine’s quality and origin. “VQA wines fetch higher prices than international blends,” she explains. “If you talk to a lot of consumers, they associate this certification trademark with that of quality.”

The Scotch Whisky Association (SWA) is consulted regularly for advice by other bodies looking to create GIs or to register trademarks. Lindesay Low, the SWA’s deputy director of legal affairs, says: “GI is an invaluable tool in protecting Scotch whisky’s reputation, ensuring it continues to be recognised as a high-quality product that has been distilled and matured in Scotland to a specific standard.

“The SWA’s proactive approach to GI and trademark enforcement makes us well-placed to offer insight into how the Scotch whisky category is protected from misuse, imitation, evocation and other practices that could mislead consumers. We are frequently approached by producers and industry bodies from other countries, to whom we advise that early and appropriate use of intellectual property protection, whether through [the] GI framework, certification trademark or collective trademark, is highly beneficial, depending on the legal system in each market. Protecting the reputation of Scotch whisky remains a top priority for the SWA.”

Framing a GI for English whisky

Tagore Ramoutar, one of the founding directors of the English Whisky Guild (EWG), consulted with the UK Government’s Department for Environment, Food & Rural Affairs (Defra) in 2021 to find a way to protect and promote English whisky. “The only option they could recommend was for us to create a GI because there wasn’t any other legal protection that was open to a small industry like ours,” he explains. At the time, the nascent EWG had 16 members; it has since grown to include 28 members.

“I looked at the GIs that were being created in other places and learned from their best features. The underlying principles for our GI were that it shouldn’t disadvantage any distillery that had already put in an investment and it shouldn’t contradict the general understanding of any definitions. England was still an emerging whisky region, and so we had to get the balance right between fitting in with expectations yet still providing points of difference to other whisky regions that would allow us to tell our story.”

Those points of difference include stipulating that the grains used to produce the whiskies must come from the UK, while casks can be made from other woods besides oak, such as walnut. By comparison, the switch from the use of maize to barley for blended Scotch in recent decades means 82% of Scotland's grain is now homegrown. Under the proposed GI, all English whiskies could be exported in bulk and bottled in their destination markets – an option open to blended Scotch but not Scotland’s single malts.

After feedback from producers, the English requirement to use a copper still was changed to a still that permits ‘sufficient copper contact’, allowing distilleries to use more modern pot stills, such as the iStill, which can use a copper ‘waffle’ or grid to remove sulphur compounds. In comparison, the Scotch Whisky Regulations specify a pot still, but copper isn’t mentioned in the legislation.

The EWG consulted with the SWA when it was drawing up its GI. When the proposals were published, the SWA objected to its definition of single malt, which allowed for the strong beer that’s distilled to make the spirit to be brewed away from the distillery, permitting English distillers to carry on working with breweries. “I’m incredibly thankful for all their publicity,” smiles Tagore. “Every time they complain about our GI, we get a massive increase in interest that we could never have got without them. Once the GI is put to bed, I think we will work again in tandem with the SWA and other whisky associations because we have so much in common.”

Tagore hopes a decision from Defra on the English whisky GI is imminent. If the GI isn’t put in place then English whisky production will continue using the EU definitions incorporated into the law of England and Wales following Brexit.

This article was updated on Wednesday, June 3 to reflect new data.