See Part I of this essay here.
What is Traceability?
According to the International Organisation for Standardisation – ISO 8402 (1994) standards, “Traceability is the aptitude to find the history, the utilisation or the localisation of an entity by the means of registered identification.” The ISO 9000 (2005) modified this definition to read “the ability to trace the history, application or location of that which is under consideration.” While both definitions mean almost the same thing when unpacked, the operative word which concludes the 1994 definition “…by the means of registered identification” gives a clearer picture of what traceability entails.
Traceability systems would, in many instances, require that every ingredient or component used in the making of an entity carries an identification tag, and such tag must be registered, thereby making it possible for regulators to act, when perceived negative eventualities occur. It is therefore by the means of the registered identification, at every stage, production, through distribution, that the history, application or utilisation and final location of products can be successfully traced.
While the above-given definitions are of general application, there are definitions which are food industry specific.
The FAO/WHO Codex Alimentarius Commission (CAC 2006) defines traceability as “the ability to follow the movement of a food through specified stage(s) of production, processing and distribution.” This definition gives a simple understanding of what traceability entails. However, given the delicate nature of the human body and the need to ensure that every item consumed is of requisite standard, the EU put forward an all-encompassing definition to cover every aspect of food and feed production.
Article 3(15), EU Regulation 178/2002 (General Food Law), defines traceability as “the ability to trace and follow a food, feed, food-producing animal or substance intended to be, or expected to be incorporated into a food or feed, through all stages of production, processing, and distribution.”
To better understand what is required of food and feed business operators, Article 18 of the EU General Food Law further provides as follows:
- The traceability of food, feed, food-producing animals, and any other substance intended to be, or expected to be, incorporated into a food or feed shall be established at all stages of production, processing and distribution
- Food and feed business operators shall be able to identify any person from whom they have been supplied with a food, a feed, a food-producing animal, or any substance intended to be, or expected to be, incorporate into a food or feed.
- Food and feed business operators shall have in place systems and procedures to identify other businesses to which their products have been supplied. This information shall be made available to the competent authorities on demand.
- Food or feed which is placed on the market or is likely to be placed on the market in the Community shall be adequately labelled or identified to facilitate its traceability, through relevant documentation or information in accordance with the relevant requirements of more specific provisions
To simplify the above, the requirement of Article 18 is such that food and feed business operators should be able to identify from whom and to whom a product has been supplied (the one step back – one step forward) approach.
In addition, there is an expectation on the food and feed operators to have systems and procedures in place that allow for this information to be made available to the Competent Authorities upon request. This is to enable the authorities trace and prevent the distribution and consumption of unsafe or bad quality food. Montet, Didier & Dey, Gargi (2018).
To understate the importance of the above, the regulation further places a responsibility on food and feed business operators at every stage of production to ensure that their products meet the requirement of the food law, as it applies to them, while also placing a responsibility on Member States of the EU to enforce the food law and to monitor and verify that the relevant requirements of the food law are fulfilled by food and feed business operators within their territories, at all stages of production, processing, and distribution. Article 17 (1) and (2) EU General Food law
However, with the understanding that human beings are prone to circumventing the law, the regulation further makes provisions for member states to lay down the rules, measures and penalties applicable to the infringement of food and feed law, in addition, it is expected that “the measures and penalties provided for shall be effective, proportionate and dissuasive.”
This is to ensure compliance on the part of the operators, as failure to adhere to the rules renders an operator liable to being excluded from participating in such production activity by the EU or the Member state under which such operator operates out of.
The rationale behind the adoption of traceability in food and feed product flow is dependent on the important roles traceability plays, amongst which are:
- It enables the targeted withdrawal and recall of food and feed products, that have been identified to contain harmful elements to humans upon consumption,
- It helps provide consumers with accurate information concerning food products, thereby helping to maintain consumer confidence.
The trust consumers have for food products is one that must be rigorously guarded. This is premised on the fact that once consumers can no longer trust the safety of particular food products, such food products are bound to face extinction, and regaining the trust of consumers becomes a herculean task.
No incident perfectly epitomises this like the outbreak of the Bovine Spongiform Encephalitis (BSE) otherwise called the mad cow disease, in the United Kingdom.
In the words of Heather B. Freeman “When a new illness in cattle appeared in the United Kingdom twenty years ago, its ensuing nationwide and global repercussions could not have been envisioned. Not only did mad cow disease destroy the British cattle industry, it raised the fears of leaders and citizens around the world. Wary of tainted British beef, the European Union stepped in to attempt to curb the crisis while it was in its infancy.”
The mad cow disease surfaced in the United Kingdom in the 1980s, and it triggered a fear of the safety of beef and beef products originating from the United Kingdom in both the EU and the world over. To curb the spread in the EU therefore, the EU passed the resolution D 89/469/EEC of 28 July 1989, the purpose of which was to restrict the dispatch of certain livestock from the United Kingdom. This was followed by a series of amendments. However, in 1996, a total ban was placed on the dispatch of all live cattle and all cattle products from the UK BSE: the European regulatory context.
The effect of the restriction was as clear as day; the livestock industry in the UK became negatively affected, and as a result, british beef farmers lost around $2.3 Billion in exports, according to CNN Money. Furthermore, and more importantly, upon the lifting of the ban on the export of british beef, there were reports that beef farmers were unable to secure exports for their products, due to the damage that both BSE outbreak and the subsequent embargo had caused.
The mad cow disease had raised fears on the part of consumers about the safety or otherwise of UK beef and beef products; however, the embargo served as a confirmation of the fears raised. Therefore, it was not surprising when France, even after the EU had lifted the embargo on the export of UK beef and beef products, refused to lift its embargo, citing safety reasons according to the BBC News. France would later review its stance three years later, in 2002, when it was convinced that the trace of BSE in UK beef posed a ‘negligible risk’ of causing the human form of mad cow disease, variant Creutzfeldt Jakob Disease” as reported by The Guardian.
Following the introduction of traceability into the food and feed business in the EU, by the General Food Law, and considering the generality of its clauses and provisions, the EU proceeded to make regulations for specific items under production within the Union. For example, Article 118p of Regulation (EC) No 491/2009 makes provision for relevant bodies (e.g., product certification bodies, public authorities, etc.) to embark on annual verification of compliance of GI protected goods, with GI specifications. Article 37 of Regulation (EC) No 491/2009 which deals with GI protected agricultural products and foodstuff, and Article 38 of Regulation (EU) 2019/787 which deals with GIs for spirits drinks, also provide for similar verification before products bearing GIs are allowed entry into the market.
The most detailed regulation, however, on how to conduct, or infuse traceability into the food/supply chain is that on wines.
Article 147(1) of Regulation (EU) No 1308/2013 laid the foundation for traceability of wine products, by mandating that the products of the wine sector in the EU shall be put into circulation in the Union with an officially authorised accompanying document.
One might then be tempted to ask what the purpose of an accompanying document or certificate is. According to the European Commission, “The so-called “accompanying document” is one of the main tools introduced by the new regulations that will ensure the traceability of wines. Shipments of wine products will be obliged to carry an accompanying document for all transport operations, both for excise duty purposes and in order to check their conformity with the EU provisions. This document may also be used to certify a wine’s origin, characteristics, vintage or wine grape variety and its status as a protected designation of origin or protected geographical indication…”
Article 13 of the Regulation (EU) 2018/274 expands the provisions of Article 147 (2), by placing a requirement on operators (producers, processors, bottlers and merchants) to keep an inwards and outwards register (“the register”) of every wine product that passes through their hands.
It provides that, for every entry or withdrawal of products, the register is expected to contain certain information, to wit: the lot number of the product, the date of the operation, the quantity entered or withdrawn, the description of the product concerned, and a reference to the accompanying document or certificate which accompanied the consignment under consideration. (Article 15 (1))
Ultimately, the inwards and outwards register conforms to the “one step back and one step forward” approach, because it provides for, from whom and to whom a product has been supplied.
The Relationship Between Traceability and Geographical Indication.
There have been arguments put forward as it concerns the relationship between traceability and GI. One argument is that traceability, by the enactment of the general food law, has become a matter of necessity for all food and feed products manufactured and produced in Europe, therefore traceability does not accord GI products any unique selling point in the market, beyond the uniqueness that such GI products already enjoy by virtue of being GI products. According to (Verbeke and Roosen, 2009), “The General Food Law Regulation EC 178/2002 requires the traceability of all foodstuffs. Thus traceability has become mandatory and is no longer a criterion on which products can be differentiated…”. This argument, however, fails to consider the all-important role traceability plays as far as GI products are concerned.
While the primary and general role of traceability is to enable the targeted withdrawal and recall of food and feed products that have been identified to contain harmful elements to humans upon consumption and to also give consumers information about the origin of products or goods, for GI products, the role of traceability is quite different and more in-depth than just ensuring food safety.
In the words of Sciarra and Gellman, 2012, “In the certification and control processes provided for GIs under… EU regulations, traceability is a core element. Only by recording the origin of the various components and tracking the production chain is it possible for the certification and control bodies to verify, certify, and monitor whether the final product actually has the claimed link with its geographical origin and conforms to the relevant specification and quality requirements.”
Thus, beyond ensuring safety (which is an important factor), traceability, as far as GI products are concerned, is also applied to act as a verification of the link of a product with its claimed provenance, therefore helping to ‘separate the wheat from the chaff.’
Furthermore, in a research embarked upon by Du Plessis and Du Rand on ‘The significance of traceability in consumer decision making towards Karoo lamb’ where respondent had to select from a range of options on lamb meat, the results revealed that the respondents had the greatest preference for lamb meat that can be traced back to the birth farm. Note that the Karoo Lamb is a designated Geographical Indication.
Finally, the importance of traceability to GI products is one that is recognised by international organizations such as the FAO and WIPO.
The argument put forward by Verbeke and Roosen concerning the generic nature of traceability, although might hold water in some climes, is limited in nature. The protection offered to products through GIs is an evolving one. Many countries in Africa, for example, are either just embracing that mode of IPR protection, or are totally oblivious of it as a whole. As of today, only Twelve(12) countries out of Fifty-four (54) in Africa have products that enjoy GI protection, with a total of 188 products; South Africa has 88 products, followed by Morocco with 62 products, according to the OriGin database.
One of such countries where the awareness of Geographical Indication as a mode of protecting intellectual property rights (IPRs) is just gaining traction is Nigeria.
While Nigeria as a country has enacted laws to govern and regulate Patents, Industrial designs Trademarks, and Copyrights, it has not yet enacted a law for the protection of GIs in Nigeria. Although there are several products in Nigeria that are potential GI products, the absence of a proper GI protection regime continues to hinder their development.
It is important to note that of late, there have been conversations within the IP space in Nigeria, aimed at creating awareness and educating Nigerians about the importance of GIs to indigenous products that have already acquired a certain uniqueness or reputation, due to their geographical origins or provenance. It, therefore, becomes imperative that, as the conversations are potentially expected to give rise to the enactment of a sui generis law or an amended Trademark Act, that recognises the place of Collective marks, alongside certification marks, proponents of GI remember to drive home the need to include traceability requirements in the body of law, or in the alternative, a model Code or Practice is developed, for interested parties to adopt as a guide towards the development of standards and requirements for each potential GI product.
Needless to say that ‘the rules (in the Code of Practice) do not have to be very complicated or numerous, but they need to be extremely focused on the elements that give the product its originality and typical character’.
The need to include traceability in the process is premised on the fact that GI products originating from Nigeria would most likely find their way to Europe and other climes, where traceability has attained notoriety, (Nigeria should endeavour to sign a bilateral agreement with the EU for the protection and recognition of Nigerian GI products in Europe, such as the Economic Partnership Agreement signed between the Southern Africa Development Commission (SADC) and EU, which led to the protection of all of South Africa’s GI products in Europe) and given that there is a requirement that every food or feed product imported into Europe complies with the relevant requirements of the food law (Art.11 EC REG 172/2002 (General Food Law)) (traceability being a part of the requirements (Art. 18 General Food Law) ), it, therefore, becomes expedient that in laying the foundation for GI protection in Nigeria, traceability mechanisms are put in place.
