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22 Oct 2013

What do the UK’s plans to tackle ‘fake food’ entail?

More than 30 countries and key enforcement agencies met on 20 September 2013 in Newport, Wales to discuss the growing issue of fake and substandard food and drink. The international conference focused on ‘fake’ branding of products and foodstuffs not subject to proper public health controls. The Intellectual property Office (IPO) will host the event, during which it will set out the UK’s plans to support the joint INTERPOL and Europol Operation Opson, which was established in 2011.

What are the main issues in relation to fake branding of products?

The main issue is the protection of the consumer especially in respect of food and drink. The food industry is highly regulated when it comes to the production, storage and packaging of food stuff to ensure that the health of the consumer is not put at risk. However, fake food is produced illicitly without any safeguarding in terms of hygiene, ingredients or quality controls in general and so public health is put at significant risk. The risks were acutely highlighted last year when more than 40 people in Poland and the Czech Republic died after consuming counterfeit vodka which contained the highly poisonous methanol. There is also the sec-ondary issue of the economic prejudice to legitimate businesses whose livelihoods are affected by a market flooded with cheaper fake goods.

What are the UK’s plans to support the INTERPOL/Europol Operation Opson?

Operation Opson was started in 2011 under the co-ordination and guidance of INTERPOL and Europol. It involved at the time ten European countries (including the UK) who combined forces to crack down on fake food and drink. The operation involved checks at all ports, as well at shops and other retailers. The results were shocking. Within a week of the operation hundreds of tonnes of fake food and drink such as tomato sauce, cheese, olive oil, wine and chocolate bars had been seized and confiscated. The extent of the problem was therefore revealed to be much worse than originally expected with many commentators saying that this was just the tip of the iceberg.

Over 30 countries are now part of Operation Opson and it has extended beyond Europe to the Americas and Asia. Last week the IPO organised and hosted a conference attended by many countries and their enforcement agencies to discuss how to address this growing problem worldwide and to formulate a combined approach in terms of shared intelligence and enforcement action.

Who is interested to act and solve this problem?

In the UK there are numerous stakeholders interested in seeking to solve this problem and more are pledging their support as awareness is heightened. The main stake holders are the police, the Food Safety Agency, HMRC and the IPO. A number of major private retailers have also indicated their support.

What are your predictions for the future?

It has been reported that over 100 people have been arrested as part of Operation Opson across a number of jurisdictions including the UK. It is anticipated that there will be a number of prosecutions ranging from those who manufacture the fake items to those who sell them and the outcome of those prosecutions and any ensuing sentences will be keenly observed. In addition enforcement is likely to be stepped up with a greater sharing of intelligence between borders and agencies. Members of the public will also be encouraged to report fake goods which is likely to be bolstered by the raising of awareness of the damage fake goods has on public health and the economy in general.

Is there anything lawyers should do now to advise their clients?

There are a number of offences which can be committed if for example you are an importer or retailer who knowingly or even recklessly in some cases sells fake goods. These range from offences under the Trade Mark Act 1994, the Copyright, Design and Patent Act 1988, the Fraud Act 2006 and Food Safety Act 1990. All these offences carry terms of imprisonment so there is a lot to lose aside from the reputational damage. Hence importers and retailers need to carry out due diligence on all suppliers to ensure they don’t fall foul of the law.

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