Criminal Liability in Regulatory Contexts Responses - Law ...

1.325 Whether or not HMRC succeeded in identifying the UK importer, the SWA never
obtained that information. However, it did trace the producer in Spain and
criminal proceedings were raised in Spain for misuse of a geographical
indication, which is a criminal offence under Spanish law. The individual
concerned was fined and given a suspended prison sentence of 17 ½ months
during which time he was disqualified from voting and prohibited from being
involved in any way with the alcoholic drinks industry. He was also ordered to
pay costs. In December 2006 the Spanish Supreme Court upheld this
conviction. It would be surprising indeed if those found guilty of misusing the GI
"Scotch Whisky" abroad were subject to much more serious penalties than those
who misuse it in its country of origin.
SCOTCHED
1.326 This product was being sold by an English company based in Harrogate. The
labelling involved the misuse of the indications "Scotch" and "Highland".
SIR EDWIN'S
1.327 In 2006 UK Customs seized 18,000 bottles of a product called SIR EDWIN'S, the
labelling of which falsely suggested it was Scotch Whisky. The product had been
produced in Holland and was neither whisky nor Scotch Whisky.
1.328 The sale of imitation Scotch Whisky can be an extremely profitable fraud. It will
be noted above that 2.5 million bottles of GLENCARNIE and LOWLAND GLEN
were sold in the UK over a 2 year period. However, a counterfeiter in Austria was
found to have produced 15 million cans of fake Scotch Whisky for export to
countries in the Middle East. Until it was accepted that the SWR should include
criminal penalties, irrespective of the severity of the infringement, the profit made
by the infringer, and indeed the number of times that the offender has infringed,
the only remedy available to enforcement officers would have been to serve an
improvement notice, hardly 'the punishment fits the crime'.
THE IMPACT OF UK LEGISLATION ABROAD
1.329 While the SWA appreciates that the Scotch Whisky Regulations are probably
fairly unique in this regard, they provide the cornerstone for protection of Scotch
Whisky worldwide. These Regulations are enforceable throughout all member
states of the EU as the law governing the production and marketing of the GI
Scotch Whisky. (In the same way, the French law relating to the production and
marketing of Cognac would be enforceable in the UK.) Outside the EU, Scotch
Whisky is protected as a GI under the WTO TRIPS Agreement. Once a local
court, or enforcement officer, accepts that Scotch Whisky is a GI and must be
protected as such, they will turn to UK legislation to see how Scotch Whisky must
be produced and labelled. Furthermore, those countries which have
implemented their obligations under WTO TRIPS by setting up a Register of GIs
require that the UK law on Scotch Whisky be filed as part of any application to
register "Scotch Whisky", and the UK law becomes part of the rules for the GI in
that overseas country.
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