Belgian Chocolate "®": the Struggle for Legal Assurances of Authenticity

By: Francisca Gomez

With the recent celebration of Valentine’s Day, it seems appropriate to dedicate this post to chocolate. Chocolate offers the opportunity to study food regulations and a unique type of trademark, called a geographical indication (GI). We are all aware of the varieties of chocolate–white, milk, and bitter–and of origins suggestive of quality–Belgium and Switzerland for high quality, and the UK for low quality. Regulations distinguishing varieties of chocolate are standard in a well-regulated food industry, but implementing a GI is a more controversial and complex issue. A case illustrative of such complexities involves Belgium’s fight for a GI for high-quality, authentic Belgian chocolate.

A geographical indication is a type of trademark that is used to legally protect and distinguish a product based on its origins. The GI is used to signal the quality associated with the origins of the product. For example, a GI attaches to French Champagne: the identity of the sparkling wine produced with grapes from the Champagne region is protected by law. The logic behind a GI is straightforward: to protect a product that has cultivated a reputation based on its origins–and the specific qualities pertaining to those origins–from copycats who might benefit from that reputation, mislead consumers, and tarnish the reputation of the original product.

In the world of chocolate, imitation is nothing new. Swiss and Belgian flags, along with other images representative of those countries, have been used to market chocolates that are not up to Swiss and Belgian industry standards. Those standards are defined by certain chocolate makers’ associations, the Association of Swiss Chocolate Manufacturers (CHOCOSUISSE) and The Royal Belgian Association of the Biscuit, Chocolate, Pralines and Confectionary (Choprabisco). Copycats therefore pose a problem to chocolate producers in both countries in that they simultaneously directly cut into revenues and likely damage the reputation of high quality Swiss and Belgian chocolates.

CHOCOSUISSE took steps in the 1970s to protect Swiss chocolatiers by trademarking, in the EU, Canada, and the United States, the terms “Swiss” and “Switzerland”, along with relevant symbols like the Swiss flag. Choprabisco followed suit in 2008, when it introduced the “Belgian Chocolate Code.” This is a non-binding agreement establishing guidelines for labeling Belgian chocolate. According to the code, Belgian chocolate must meet specific ingredient requirements, and refining and molding must occur in Belgium. Chocolate that is not made entirely in Belgium ought to be labeled “Made with Belgian chocolate.” But, considering the code is non-binding and thus carries no legal weight, it remains to be seen whether it will actually minimize the number of copycats in the market.

In recent years, the market for Belgian chocolates has grown considerably, mainly as people in the developing countries have demanded chocolate in increasing numbers (for example, demand between 2007 and 2011 grew by 60% in Asia and 82% in Africa). As demand has grown, so has the availability of imitation chocolates as copycats attempt to capture some of the revenue associated with the market’s growth. Accordingly, following a modification to EU laws that could potentially extend a GI to Belgian chocolate, Choprabisco in 2013 pushed for the legal protection of authentic Belgian chocolate.

Yet, implementing a GI for Belgian chocolates is itself problematic. For example, unlike Champagne grapes, the raw commodities used by Belgian chocolatiers–cocoa beans–come from various places in the world. In fact, producing the cocoa beans in Belgium would be impossible, given the weather requirements of the cacao tree. The origin of Belgian chocolate is thus associated with a specific part of the chocolate-making process that does not include the production of the raw ingredients. The process, however, does not necessarily have to be confined to Belgium, as demonstrated by Godiva, a Belgian chocolatier with a worldwide presence including a factory in Pennsylvania and ownership by a Turkish conglomerate. The company is therefore an opponent of Choprabisco’s code confining the label “Belgian chocolate” to chocolate produced in Belgium only.

Yet some of Choprabisco’s ultimate goals are valid. Protecting both consumers and a corporate reputation cultivated for over a century from copycats are legitimate ends. But perhaps the geographical indication is not the most appropriate tool, given that the process of production does not occur locally from beginning to end, and that the part of production that would be protected by the GI, the refining of the chocolate, can be replicated outside of Belgium without a loss of quality. A non-GI trademark, like the one used by Swiss chocolatiers, seems much more suitable. Of course, neither a trademark nor a GI is easy to enforce internationally, and Belgian chocolatiers might be better off asking themselves if pushing for these enhanced legal protections is ultimately cost-effective.