For a better, more concise analysis I’ve compiled it here.
Disclaimer: I’m not clear enough at all on the technical details of the information I’ve presented here to be sure that I am interpreting it correctly. Are consumers going to be prevented from knowing the country of origin for food and other products? The purpose of this post is to put together the different points and present my concerns and questions. The TPP was secret from the public for a long time except for a couple of leaks, one of which was Chapter 18 on Intellectual Property, which seems to directly impact this question. The next step is to summarize the questions for trade experts, politicians and media.
As mentioned in the previous post on the TPP, the text of the TPP was released–with its tribunals that have the power to contradict Canadian laws and sovereignty, with its race to the economic bottom in terms of jobs, and with its extremist intellectual property provisions–and we expect the new Liberal government of Justin Trudeau to just go ahead and pass it at some point after Parliament opens on December 3 this week.
It’s difficult to know whether I’m interpreting these documents correctly, but I want to raise some specific questions about whether the TPP is going to interfere with the ability of businesses to convey the country or region of origin for products, including food products to Canadian consumers. (Credit: Doyel Shamley (http://www.hourofthetime.com/wordpresstest/tag/doyel-shamley/) about this concern, interviewed by Patrick Henningsen on Sunday Wire some weeks ago before the TPP was released).
CHAPTER 3: RULES OF ORIGIN AND ORIGIN PROCEDURES
Page 3-14, Footnote 2:
Nothing in this Chapter shall prevent a Party from requiring an importer, exporter or producer in its territory that completes a certification of origin to demonstrate that it is able to support that certification.
Comment: this paragraph is talking about certification of origin, not labeling. It also doesn’t say that the Party can require certification although that might be the case. It says that it can require a business in its territory (not outside?) to support the facts stated in its certification.
Article 3.20: Claims for Preferential Treatment
2. An importing Party may:
(a) require that an importer who completes a certification of origin provide documents or other information to support the certification;
(b) establish in its law conditions that an importer shall meet to complete a certification of origin;
. . . (Page 3-15)
Comment: Same idea as above with additional details.
But what is this about?
Article 3.21: Basis of a Certification of Origin
4. For greater certainty, nothing in paragraph 1 or 2 shall be construed to allow a Party to require an exporter or producer to complete a certification of origin or provide a certification of origin to another person. (Page 3-15 to 3-16)
What does that mean?
It seems to be saying that the domestic Canadian government (the Party) can not require an exporter or producer to complete a certification of origin or even pass on the information to another person or organization.
Is that what it means? We need some experts to answer some questions about this. Is food (for example) going to be sold in Canada without shoppers knowing where it comes from?
If I’m wrong, set me straight.
And that’s just the start.
Does the following seem fishy, like its undermining the rights (or, you might say authority, depending on how you look at it) of the importing Party?
Article 3.22: Discrepancies
Each Party shall provide that it shall not reject a certification of origin due to minor errors or discrepancies in the certification of origin. (page 3-16)
I thought the certification of origin’s content and the support for its content could be enforced?
Article 3.23: Waiver of Certification of Origin
1. No Party shall require a certification of origin if:
(a) the customs value of the importation does not exceed US $1000 or the equivalent amount in the importing Party’s currency or any higher amount as the importing Party may establish; or
(b) it is a good for which the importing Party has waived the requirement or does not require the importer to present a certification of origin, provided that the importation does not form part of a series of importations carried out or planned for the purpose of evading compliance with the importing Party’s laws governing claims for preferential tariff treatment under this Agreement.
So the importing Party can’t even require a certification of origin if the customs value is under $1000. I’m not sure what quantity is valued, whether it’s a bulk collection of the items, but if we’re talking about individual items (I don’t know, like a bunch of bananas), that sounds like most products are excluded from being required by importing parties to provide a certification of origin.
Am I interpreting that correctly? Does that mean that importers of cheaper products (under $1000) won’t have to provide a certification of origin if they don’t want to?
Does the following contradict that?
Article 3.24: Obligations Relating to Importation
1. Except as otherwise provided for in this Chapter, each Party shall provide that, for the purpose of claiming preferential tariff treatment, the importer shall:
(a) make a declaration that the good qualifies as an originating good;
(b) have a valid certification of origin in its possession at the time the declaration referred to in subparagraph (a) is made;
(c) provide a copy of the certification of origin to the importing Party if required by the Party; and
(d) if required by a Party to demonstrate that the requirements in Article 3.18 (Transit and Transhipment) have been satisfied, provide relevant documents, such as transport documents, and in the case of storage, storage or customs documents. (page 3-17)
Then there are other relevant passages after that.
Just to go back to Article 3.18: Transit and Transhipment
. . .
2. Each Party shall provide that if an originating good is transported through the territory of one or more non-Parties, the good retains its originating status provided that the good:
(a) does not undergo any operation outside the territories of the Parties other than: unloading; reloading; separation from a bulk shipment; storing; labelling or marking required by the importing Party; or any other operation necessary to preserve it in good condition or to transport the good to the territory of the importing Party; and
. . .
It refers to “labelling or marking required by the importing Party” but that doesn’t mean that all labelling or marking requirements are valid under this agreement.
Just to mention something in Chapter 5: CUSTOMS ADMINISTRATION AND TRADE FACILITATION
Article 5.8: Penalties
1. Each Party shall adopt or maintain measures that allow for the imposition of a penalty by a Party’s customs administration for a breach of its customs laws, regulations or procedural requirements, including those governing tariff classification, customs valuation, country of origin and claims for preferential treatment under this Agreement.
Even so, I don’t think that means those laws can’t be overridden by the text of this agreement.
There are some relevant points in Chapter 8 that also seem to limit the authority (or rights) of the importing Party to require information from the supplier:
Chapter 8: TECHNICAL BARRIERS TO TRADE
ANNEX 8-A: WINE AND DISTILLED SPIRITS
11. If a Party requires a wine label to indicate information other than:
(a) the product name;
(b) country of origin;
(c) net contents; or
(d) alcohol content,
it shall permit the supplier to indicate the information on a supplementary label affixed to the wine container. Each Party shall permit the supplier to affix the supplementary label on the container of the imported wine after importation but prior to offering the product for sale in the Party’s territory, and may require that the supplier affix the supplementary label prior to release from customs. For greater certainty, a Party may require that information indicated on a supplementary label be clear, specific, truthful, accurate, legible, not misleading to the consumer, and firmly affixed to the container, as provided in paragraph 4. (page 18, 19)
So it seems like in the case of wine and spirits, the country of origin information is basic information, but information beyond that does not need to go on the main label. Points like this seem to limit the laws of the importing nation.
Similar to that:
14. No Party shall require a supplier to indicate any of the following information on wine or distilled spirits containers, labels or packaging:
(a) date of production or manufacture;
(b) date of expiration;
(c) date of minimum durability; or
(d) sell by date,
except that a Party may require suppliers to indicate a date of minimum durability or date of expiration on products that on account of their packaging or container (such as bag-in-box wines or individual serving size wines), or the addition of perishable ingredients, could have a shorter date of minimum durability than would normally be expected by the consumer. (page 19)
So the gist of some of these TPP articles seems to limit the authority of the importing Party as to labeling. I think that’s the thrust of these trade agreements whether or not we agree with specific requirements or think that they are interfering with trade. The point is that the sovereignty of the importing Party is being limited. At least that’s the way it seems. Do Canadians agree with that?
I’m not sure how pharmaceuticals are affected in terms of labeling and product information. Someone out there may have already studied this. Too bad there’s no time for most people to study it because the TPP was secret for so long and politicians might not listen to any criticisms anyway since they’ve invested in the TPP deal and the Canadian parliament may go ahead and pass it anyway. There is information in Annex 8-C: PHARMACEUTICALS. The following point sounds reasonable but I haven’t looked at the rest:
7bis. Each Party shall make its determination on whether to grant marketing authorisation for a specific pharmaceutical product on the basis of:
(a) information, including, where appropriate, pre-clinical and clinical data, on safety and efficacy;
(b) information on manufacturing quality of the product;
(c) labelling information related to safety, efficacy and use of the product; and
(d) other matters that may directly affect the health or safety of the user of the product. (page 26)
That sounds reasonable, but does the rest of the agreement back that up? I don’t know.
Chapter 8 looks very important as far as pharmaceuticals, cosmetics, medical devices and organic products, etc.
By the way, I think there are issues with standards for organic products in Annex8-G: ORGANIC PRODUCTS. The TPP seems to be pushing importing parties to defend their standards and to allow themselves to be pressured into agreeing with common standards:
. . .
4. Each Party is encouraged to consider, as expeditiously as possible, a request for recognition or equivalence of the standards, technical regulations, or conformity assessment procedures relating to the production, processing, or labeling of products as organic of another Party. Each Party is encouraged to accept as equivalent or recognise the standards, technical regulations, or conformity assessment procedures relating to the production, processing, or labeling of products as organic of that other Party, provided the Party is satisfied that the standards, technical regulations, or conformity assessment procedures of the other Party adequately fulfill the objectives of the Party’s standards, technical regulations, or conformity assessment procedures. Where a Party does not accept as equivalent or recognise the standards, technical regulations, or conformity assessment procedures relating to the production, processing, or labeling of products as organic of another Party, it shall, on the request of that other Party, explain its reasons.
5. Parties are encouraged to participate in technical exchanges to support improvement and greater alignment of standards, technical regulations, or conformity assessment procedures relating to the production, processing, or labeling of products as organic.
I believe this would tend to pressure countries into lowering what they consider to be proper standards for organic foods, just like these trade agreements lower wages and employment standards sending jobs to countries that have lower wages and lower standards.
I think that’s the idea of trade agreements and the climate change carbon taxes being negotiated in Paris too, and the wars, and surveillance, and destabilizing false-flag terrorism, and propaganda, and everything else that’s going on.
By the standards of the ruling minority, many people, at least in the “developed world” still feel too strong. They still feel too good. Too free. They still feel too normal, too healthy, too fertile, too much into family still, too much into independent thinking, too loyal to other things besides the world state’s agenda. “Too comfortable.” Many (not everyone) are still able to support their families, still able to heat their homes and drive their cars and live where they like. They still think they have rights and wealth and privacy and the power to do things they want to do. They need to be chopped down to size for the “new world order” and “brave new world” to “succeed.”
By the way, there are thirty chapters and plenty of potential problems in most of of those chapters which I’m skipping over because it’s too much.
Anyway, back to the topic of country of origin labeling. I’m planning to investigate this topic further once I’ve collected the information and questions together in this post.
If you’re reading this, and you have concerns about the TPP, why not start questioning politicians and media and others involved in trade to stop the ratification of the TPP? Quickly.
CHAPTER 15: GOVERNMENT PROCUREMENT
Article 15.12: Technical Specifications
. . .
3. A procuring entity shall not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design, type, specific origin, producer or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that, in these cases, the procuring entity includes words such as “or equivalent” in the tender documentation.
What does that mean? It seems to mean that a business seeking a product can not require the information to be provided in the technical specifications about a particular producer or country of origin! So the source of the product, such as brand or place of manufacture, could actually be missing from the technical specs! How does anyone know where it comes from? Am I incorrect in my interpretation?
Continuing, now we come to the big one:
CHAPTER 18: INTELLECTUAL PROPERTY
Article 18.1 Definitions
Note the definition of “geographical indication”:
geographical indication means an indication that identifies a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;
Notice the possibly defensive reference to “reputation” and “other characteristics”–which is all about consumers gathering information (or not) from different sources and using their own judgment based on different points of view about a particular product.
Section D: Country Names
Article 18.29: Country Names
Note that the use of country names can be controlled!
Each Party shall provide the legal means for interested persons to prevent commercial use of the country name of a Party in relation to a good in a manner that misleads consumers as to the origin of that good.
So this means Canada is required to create legislation that threatens business owners if they intend to “mislead” consumers by connecting a country name to a product! Maybe I’m wrong but this seems unusual to me.
Who is going to decide they are “misleading” consumers by saying that a particular product comes from nation A? Is this going to discourage businesses from referring to the country of origin, especially if the information trail has been thinned down so much that they don’t really know for sure which country it comes from (see previous points)!?
Something tells me that the ultimate goal here is to treat all products in the TPP bloc as being equivalent and to not allow consumers to have preferences about the origin, for example, in the case where consumers only want to buy products domestically. Is this what people mean by “free trade”? If I’m off base, let me know. Maybe this is out to lunch. It’s unbelievable, isn’t it? Hey, for now, bananas from A will just be the same as bananas from B? Nobody needs to know about the river in B loaded with toxins in B near the bananas. Someone has “approved” the bananas for sale and that’s all you need to know.
And ultimately, someday, protein will just be protein (or carbs will just be carbs) regardless of its source (because of the lack of information that allows anyone to make distinctions). Isn’t “science” wonderful. Protein could come from a human corpse as in Soylent Green or it could come from processed sewage. “Science” will say it’s the same thing (never mind the residue–that’s “insignificant”), just like “science” will say that the temperatures are rising when they’re not, so you need to pay carbon tax. Paying the carbon tax will fix the planet because “science” says so. Just read what “they” say and obey. We have technicians making declarations based on international agreements so that you don’t have to think. Simon says, I mean “science says” or “trade officials say” that you don’t have to bother with the details about where the milk or eggs are coming from. They’re the “same”. Why would you only want to buy food that grows in Canada? What’s wrong with you? Are you anti-science? Are you anti-trade? Are you a hate-filled xenophobe who only cares about Canadian farmers and businesses?
And you don’t have the right to use the word “country A” anyway. How dare you try to communicate an idea, good or bad, about someone else’s trademarked country name or region. It’s their “intellectual property!” It’s not yours to talk about unless they (some tribunal) say so!
Article 18.30: Recognition of Geographical Indications
The Parties recognise that geographical indications may be protected through a trademark or sui generis system or other legal means.
Article 18.31: Administrative Procedures for the Protection or Recognition of Geographical Indications
If a Party provides administrative procedures for the protection or recognition of geographical indications, whether through a trademark or a sui generis system, that Party shall with respect to applications for that protection or petitions for that recognition:
(a) accept those applications or petitions without requiring intercession by a Party on behalf of its nationals;
(b) process those applications or petitions without imposition of overly burdensome formalities;
(c) ensure that its laws and regulations governing the filing of those applications or petitions are readily available to the public and clearly set out the procedures for these actions;
(d) make available information sufficient to allow the general public to obtain guidance concerning the procedures for filing applications or petitions and the processing of those applications or petitions in general; and allow an applicant, a petitioner, or their representative to ascertain the status of specific applications and petitions;
(e) ensure that those applications or petitions are published for opposition and provide procedures for opposing geographical indications that are the subject of applications or petitions; and
(f) provide for cancellation of the protection or recognition afforded to a geographical indication.
Back to a couple of earlier sections in Chapter 18 and then continuing:
Article 18.9: Transparency
2. Each Party shall, subject to its law, endeavour to make available on the Internet information that it makes public concerning applications for trademarks, geographical indications, designs, patents and plant variety rights.
3. Each Party shall, subject to its law, make available on the Internet information that it makes public concerning registered or granted trademarks, geographical indications, designs, patents and plant variety rights, sufficient to enable the public to become acquainted with those registered or granted rights.
Article 18.19: Collective and Certification Marks
Each Party shall provide that trademarks include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its law, provided that those marks are protected. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trademark system.
Page 18-10, Footnotes 10-12
10 Consistent with the definition of a geographical indication in Article 18.1 (Definitions), any sign or combination of signs shall be eligible for protection under one or more of the legal means for protecting geographical indications, or a combination of such means.
11 For greater certainty, the exclusive right in this Article applies to cases of unauthorised use of geographical indications with goods for which the trademark is registered, in cases in which the use of that geographical indication in the course of trade would result in a likelihood of confusion as to the source of the goods.
12 For greater certainty, the Parties understand that this Article should not be interpreted to affect their rights and obligations under Article 22 and Article 23 of the TRIPS Agreement.
Article 18.20: Use of Identical or Similar Signs
Each Party shall provide that the owner of a registered trademark has the exclusive right to prevent third parties that do not have the owner’s consent from using in the course of trade identical or similar signs, including subsequent geographical indications, for goods or services that are related to those goods or services in respect of which the owner’s trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.
Section E is all about Geographical Indications. See 18.30 and 18.31 above.
Article 18.32: Grounds of Opposition and Cancellation
1. If a Party protects or recognises a geographical indication through the procedures referred to in Article 18.31 (Administrative Procedures for the Protection or Recognition of Geographical Indications), that Party shall provide procedures that allow interested persons to object to the protection or recognition of a geographical indication and that allow for any such protection or recognition to be refused or otherwise not afforded, at least, on the following grounds:
(a) the geographical indication is likely to cause confusion with a trademark that is the subject of a pre-existing good faith pending application or registration in the territory of the Party;
(b) the geographical indication is likely to cause confusion with a pre-existing trademark, the rights to which have been acquired in accordance with the Party’s law; and
(c) the geographical indication is a term customary in common language as the common name for the relevant good in the territory of the Party.
2. If a Party has protected or recognised a geographical indication through the procedures referred to in Article 18.31 (Administrative Procedures for the Protection or Recognition of Geographical Indications), that Party shall provide procedures that allow for interested persons to seek the cancellation of a geographical indication, and that allow for the protection or recognition to be cancelled, at least, on the grounds listed in paragraph 1. A Party may provide that the grounds listed in paragraph 1 shall apply as of the time of filing the request for protection or recognition of a geographical indication in the territory of the Party.
3. No Party shall preclude the possibility that the protection or recognition of a geographical indication may be cancelled, or otherwise cease, on the basis that the protected or recognised term has ceased meeting the conditions upon which the protection or recognition was originally granted in that Party.
4. If a Party has in place a sui generis system for protecting unregistered geographical indications by means of judicial procedures, that Party shall provide that its judicial authorities have the authority to deny the protection or recognition of a geographical indication if any of the circumstances identified in paragraph 1 has been established. That Party shall also provide a process that allows interested persons to commence a proceeding on the grounds identified in paragraph 1.
5. If a Party provides protection or recognition of a geographical indication through the procedures referred to in Article 18.31 (Administrative Procedures for the Protection or Recognition of Geographical Indications) to the translation or transliteration of that geographical indication, that Party shall make available procedures that are equivalent to, and grounds that are the same as, those referred to in paragraphs 1 and 2 with respect to that translation or transliteration.
Page 18-17, Footnotes 20-22
20 A Party is not required to apply this Article to geographical indications for wines and spirits or to applications or petitions for those geographical indications.
21 For greater certainty, if a Party provides for the procedures in Article 18.31 (Administrative Procedures for the Protection or Recognition of Geographical Indications) and this Article to be applied to geographical indications for wines and spirits or applications or petitions for those geographical indications, the Parties understand nothing shall require a Party to protect or recognise a geographical indication of any other Party with respect to products of the vine for which the relevant indication is identical with the customary name of a grape variety existing in the territory of that Party.
22 For greater certainty, if the grounds listed in paragraph 1 did not exist in a Party’s law as of the time of filing of the request for protection or recognition of a geographical indication under Article 18.31 (Administrative Procedures for the Protection or Recognition of Geographical Indications), that Party is not required to apply those grounds for the purposes of paragraphs 2 or 4 (Grounds of Opposition and Cancellation) in relation to that geographical indication.
Article 18.33: Guidelines for Determining Whether a Term is the Term Customary in the Common Language
With respect to the procedures in Article 18.31 (Administrative Procedures for the Protection or Recognition of Geographical Indications) and Article 18.32 (Grounds of Opposition and Cancellation), in determining whether a term is the term customary in common language as the common name for the relevant good in the territory of a Party, that Party’s authorities shall have the authority to take into account how consumers understand the term in the territory of that Party. Factors relevant to such consumer understanding may include:
(a) whether the term is used to refer to the type of good in question, as indicated by competent sources such as dictionaries, newspapers and relevant websites; and
(b) how the good referenced by the term is marketed and used in trade in the territory of that Party.24
Article 18.34: Multi-Component Terms
With respect to the procedures in Article 18.31 (Administrative Procedures for the Protection or Recognition of Geographical Indications) and Article 18.32 (Grounds of Opposition and Cancellation), an individual component of a multi-component term that is protected as a geographical indication in the territory of a Party shall not be protected in that Party if that individual component is a term customary in the common language as the common name for the associated good.
Comment: It seems like a term can’t be protected if it’s a common term used in association with a particular good, but is that going to make a difference in most cases?
Page 18-18, Footnotes 23-24
As an alternative to this paragraph, if a Party has in place a sui generis system of the type referred to in this paragraph as of the applicable date under Article 18.36.6 (International Agreements), that Party shall at least provide that its judicial authorities have the authority to deny the protection or recognition of a geographical indication if the circumstances identified in paragraph 1(c) have been established.
24 For the purposes of this subparagraph, a Party’s authorities may take into account, as appropriate, whether the term is used in relevant international standards recognised by the Parties to refer to a type or class of good in the territory of the Party.
Article 18.35 and 18.36 deal with geographical indications also.
Article 18.74 also mentions geographical indications: point #15 (page 18–48).
See the disclaimer at the top of this post. The leak of Chapter 18 before the secret TPP was made public may have led others to study this question already. The next step is to summarize the questions and information I have collected and direct them to those knowledgeable enough about trade as well as politicians, media and others.
Dec. 6, 2015
Dec. 10, 2015)