Imitation is the Sincerest Form of Flattery: How Scandinavian Prisons are Inspiring Reform in the U.S.

By Erin Valenta

Norway and Sweden are commonly celebrated for promoting progressive incarceration techniques. Their low incarceration-related statistics reflect their open-minded perspective toward criminality and what it means to be a criminal (if it means anything). In contrast, the United States has long embraced the retribution-focused view toward criminal justice, and its incarceration-related statistics reveal that. Some United States governments have taken steps towards reforming their incarceration approach, looking to the Scandinavian countries as motivation. It is uncertain whether Norway’s and Sweden’s approaches should be celebrated as much as they are.

Norway is often lauded for embracing “gentle justice,” which is the idea that the incarceration imposed upon a person is itself the punishment and that further restrictions of the person’s liberty should be limited. [1] For example, Norwegian prisoners typically wear normal clothes, not prison uniforms, and they are often allowed to walk unguarded within the prisons. [2] Norwegian prisons also feature brightly colored decorations and elements of biophilic design. [3] The country claims that it wants those incarcerated to be good neighbors upon their release (release is inevitable for nearly all Norwegian prisoners, as the country mostly banned life sentences in 1981). [4] It largely seems to be achieving that goal, as Norway’s recidivism rate is approximately 20%. [5] Norway’s predicted incarceration rate for 2023 is fifty-seven per 100,000 residents, which is much lower than rates seen across the globe, including Europe. [6]

Sweden’s approach to criminal justice is similar to Norway’s, and it also has a low incarceration rate. In 2022, the rate was estimated to be seventy-four per 100,000 residents. [7] Sweden’s recidivism rate is about 30% when considering the three years after release. [8] Most Swedish prisons are open, meaning they resemble dormitories, and incarcerated persons are allowed a great deal of freedom. Most of Norway’s prisons are open-style as well. [9] Sweden has also allowed incarcerated persons to organize and be represented by inmate associations since the mid-1970s. [10] The country handles the incarceration of minors very carefully. Swedish persons younger than twenty-one who are convicted of crimes that carry a minimum sentence of less than one year are generally legally entitled to ungdomsrabatt, which means youth rebate or discount. [11] The youth discount allows younger persons to receive a lighter sentence than an adult convicted of the same crime. [12]

In comparison, the United States has the highest rate of incarceration in the world, at 350 incarcerated persons per 100,000 residents aged eighteen or older. [13] With a prison population of about 1.2 million at the end of 2021, the nation also has the world’s highest prison population. [14] Further, the United States’ recidivism rate is also strikingly high (exact numbers vary depending on the factors used to determine what recidivism means). Certain states have, however, taken steps to reform their approach to incarceration and physically update their facilities to match these changes in perspective.

California governmental officials have talked about renovating the infamous San Quentin Prison for years. [15] In March 2023, Governor Gavin Newsom announced that the facility is to be completely renovated and renamed the San Quentin Rehabilitation Center by 2025, and he pledged $20 million to initiate the process. [16] Governor Newsom told the Los Angeles Times that his goal is to “‘completely reimagine what prison means’”— which is an ambitious goal for the state with the second-highest prison population in the country. [17] With around 700 death row prisoners under its jurisdiction, California also has the highest death row population in the United States. [18] Most of the state’s death row prisoners are housed in San Quentin, and they are to be moved (some already have been) to different facilities across the state so that the prison can be updated to house incarcerated persons convicted of less serious crimes. [19] The new facility is to have vocational programs to teach prisoners useful trades like plumbing and electrical work. [20] Governor Newsom’s office referenced Norway’s progressive attitude toward incarceration as inspiration for the San Quentin Prison renovation, and Governor Newsom stated that he hopes to “creat[e] a new model of safety and justice . . . that will lead the nation.’” [21]

North Dakota has similarly been motivated by the Scandinavian approach to incarceration. In 2015, a group of North Dakota prison officials, legislators, and judicial officials visited Norway. [21] The group toured various prisons across the country, and the trip triggered reforms across the state. [23] The North Dakota State Penitentiary, for example, eliminated punishments for minimal transgressions such as talking back to a correctional officer. [24] North Dakota also made radical statewide changes to its solitary confinement practices, resulting in a rapid decrease in solitary confinement rates—between 2016 and 2020, the state’s use of solitary confinement decreased by about 74%. [25] The former Clinical Director of the State Penitentiary embraced the reforms, telling NPR, “‘The idea that somebody is just going to sit there and think about what they did and magically know how to handle a situation differently in the future is not accurate. So[,] we have to be pro-active [sic] in helping people know how to change.’” [26]

Norway’s approach to incarceration has also inspired Pennsylvania to make changes to its correctional system. The State Correctional Institution – Chester (“SCI Chester”), a medium-security prison located about thirty minutes outside of Philadelphia, contains the epitome of that inspiration. [27] “Little Scandinavia” is a wing inside SCI Chester that was remodeled in the fashion of Scandinavian prisons. [28] In 2017, Norwegian prison officials visited SCI Chester as part of a program with Drexel University in Philadelphia. [29] SCI Chester’s superintendent, its unit manager, and various other correctional officials then visited prisons across Sweden, Norway, and Denmark in 2019. [30] Little Scandinavia’s conceptualization occurred shortly after. In March 2020, six SCI Chester prisoners, all of whom are sentenced to life, moved into Little Scandinavia as a test run. [31] The COVID-19 pandemic caused Little Scandinavia’s finalization to be put on hold, but SCI Chester cemented the project’s policies and layout in mid-2022. [32] In May 2022, the prison selected twenty-nine additional people from its general population to move into the wing. [33] Little Scandinavia contains sixty-four single cells, a communal kitchen, and a landscaped green space. [34] The unit’s common space features a large fish tank, as well as foosball and air hockey tables. [35] Those housed in Little Scandinavia can place orders with a local grocery store and purchase fresh foods, which is extremely uncommon in American prisons. [36] The wing’s low staff-to-prisoner ratio mirrors ratios seen in Scandinavian prisons; there is about one officer per eight residents. [37]

While many states have begun to mimic the Scandinavian countries’ approaches to incarceration, it is debatable whether those countries’ approaches are as progressive as they claim to be. Certainly, their practices are generally much more humane than those seen in American prisons. However, the Scandinavian countries are not saints.

In 2019, the United Nations (“UN”) criticized Norway’s policies regarding solitary confinement. [38] The UN’s Standard Minimum Rules for the Treatment of Prisoners (often referred to as the Nelson Mandela Rules) prohibit confinement for twenty-two or more hours per day for more than fifteen consecutive days. [39] Sweden and Denmark have laws prohibiting the confinement of incarcerated persons for more than twelve hours a day, but Norway has no national legislation limiting the use of solitary confinement in its correctional facilities. [40] Instead, each prison section has the power to determine which prisoners are allowed out of their cells and for how long. [41] A report done by Norway’s own Correctional Service estimated that one in four Norwegian prisoners is locked in their cell for at least sixteen hours a day. [42] Since it is possible that the Correctional Services wanted its report to be favorable toward itself, the number may be even higher. Further, generally accepted international standards declare that medical personnel should visit those in solitary confinement every day; yet, Norway has enacted no national legislation to enforce this standard. [43]

The UN has also censured Sweden for its use of solitary confinement. In a 2021 report, the UN’s Committee Against Torture called for Sweden to restrict its use of solitary confinement in general and to discontinue subjecting minors to it. [44] The Committee also criticized Sweden for its lack of restrictions on pretrial detentions. [45] In 2014, the country had no law limiting the amount of time a person could be detained before trial; it has since instituted a nine-month limitation, which the Committee sees as a promising step toward further reform. [46]

Both Norway and Sweden should be commended for being among those countries leading the prison reform movement, but how much of a positive impact do bright colors and plants actually have on prisoners? One study conducted with incarcerated persons in Norway’s Halden Prison suggests that the impact is much lower than most people expect. [47] As one prisoner succinctly stated,  “Yes, it looks nice. But it has nothing to do with our everyday perception of life.” [48] When asked whether Halden Prison’s atmosphere motivated him, another prisoner explained, “There is no such thing as motivation in squared walls.” [49] A vast majority of those surveyed reported that having their own cell was the most beneficial aspect of Halden Prison. [50] Unfortunately, it is very common for American prisons to house two people in a single cell. [51] In Rhodes v. Chapman, decided in 1981, the United States Supreme Court held that “double-bunking,” as the above practice is often called, is not a violation of the Eighth Amendment; that case has yet to be overruled. [52]

The United States ratified the International Covenant on Civil and Political Rights (“ICCPR”) in 1992. [53] The ICCPR holds that “the essential aim” of a penitentiary system must be the “reformation and social rehabilitation” of those incarcerated within it. [54] While the country has not fulfilled that aim thus far, the Scandinavian-inspired reforms that various States have implemented indicate that the nation is getting closer to doing so.

[1] Alexis Riep, The Effects of Culture and Punishment Philosophies on Recidivism: Comparing Prison Systems in the United States and Scandinavia (2019), https://encompass.eku.edu/cgi/viewcontent.cgi?article=1680&context=honors_theses.

[2] Id.; Sam Levin, Can California’s most notorious prison become a rehab center? Ex-residents weigh in, The Guardian (Mar. 21, 2023), https://www.theguardian.com/us-news/2023/mar/21/san-quentin-transformation-rehab-center-thanh-tran-james-king-interview.

[3] Can California’s most notorious prison become a rehab center? supra, note 2; Sami Levin & Ashley Kilmer, ‘A Prison is a Prison’: Perspectives From Incarcerated Men on the Therapeutic and Punitive Aspects of Halden Prison in Norway, XX The Brit. J. of Criminology 1 (2022), https://doi.org/10.1093/bjc/azac054.

[4] Jordan M. Hyatt, Synøve N. Andersen, Steven L. Chanenson, Veronica Horowitz & Christopher Uggen, “We Can Actually Do This”: Adapting Scandinavian Correctional Culture in Pennsylvania, 58 Am. Crim. L. Rev. 1716 https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2021/07/58-4_Hyatt-et-al-We-Can-Actually-Do-This.pdf.; Jessica Benko, The Radical Humaneness of Norway’s Halden Prison, The New York Times Mag. (Mar. 26, 2015), https://www.nytimes.com/2015/03/29/magazine/the-radical-humaneness-of-norways-halden-prison.html.;  What We Can Learn From Norway’s Prison System: Rehabilitation & Recidivism, First Step Alliance (Jan. 3, 2022), https://www.firststepalliance.org/post/norway-prison-system-lessons.

[5] Bolorzul Dorjsuren, Norway’s Prison System Benefits Its Economy, The Borgen Project (last visited Apr. 6, 2023), https://borgenproject.org/norways-prison-system/.

[6] Norway, World Prison Brief (last visited Apr. 7, 2023), https://www.prisonstudies.org/country/norway.; Emily Widra & Tiana Herring, States of Incarceration: The Global Context 2021, Prison Policy Initiative (Sept. 2021), https://www.prisonpolicy.org/global/2021.html.

[7] Sweden, World Prison Brief (last visited Apr. 6, 2023), https://www.prisonstudies.org/country/sweden.

[8] Swedish correctional services: growing challenges in an era of change, Just. Trends (Mar. 21, 2022), https://justice-trends.press/swedish-correctional-services-growing-challenges-in-an-era-of-change/.

[9] Nick Baker & Annabelle Quince, Nordic criminal justice: How does it differ from Australia and does it work?, ABC News (Oct. 4, 2022), https://www.abc.net.au/news/2022-10-05/what-are-nordic-prisons-like-criminal-justice/101481590.

[10] E. Kuhlhorn, Nat’l Inst. of Just., Imprisonment and the Criminal Justice System in Sweden (1981), https://www.ojp.gov/ncjrs/virtual-library/abstracts/imprisonment-and-criminal-justice-system-sweden.

[11] Elin Hofverberg, Sweden: New Sentencing Rules Remove Exceptions for Young Offenders, Library of Congress (last visited Apr. 6, 2023), https://www.loc.gov/item/global-legal-monitor/2022-01-10/sweden-new-sentencing-rules-remove-exceptions-for-young-offenders/.

[12] Linnea Backman, New rules on abolished sentence reduction for young adults, The Referee Blog (Jan. 19, 2022), https://www.domarbloggen.se/nya-regler-om-slopad-straffreduktion-for-unga-myndiga/.

[13] E. Ann Carson, Bureau of Just. Stat., Prisoners in 2021 – Statistical Tables 13 (2022), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/p21st.pdf.

[14] E. Ann Carson, Bureau of Just. Stat., Prisoners in 2021 – Statistical Tables 1 (2022), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/p21st.pdf.

[15] Anita Chabria, California to transform infamous San Quentin prison with Scandinavian ideas, rehab focus, Los Angeles Times (Mar. 16, 2023), https://www.latimes.com/california/story/2023-03-16/newsom-wants-to-transform-san-quentin-using-a-scandinavian-model.; Amy Argetsinger, Renovation Plan for San Quentin Opposed, Wash. Post (Dec. 12, 2004), https://www.washingtonpost.com/archive/politics/2004/12/12/renovation-plan-for-san-quentin-opposed/0d814273-0d82-47b5-bd12-ad60fe62677e/.

[16] California to transform infamous San Quentin prison with Scandinavian ideas, rehab focus, supra, note 16; Sophie Austin, California to overhaul San Quentin prison, emphasizing rehab, The Associated Press (Mar. 16, 2023), https://www.ktre.com/2023/03/17/california-transform-prison-with-death-row-legacy/.

[17] California to transform infamous San Quentin prison with Scandinavian ideas, rehab focus, supra, note 16; E. Ann Carson, Bureau of Just. Stat., Prisoners in 2021 – Statistical Tables 18 (2022), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/p21st.pdf.

[18] California to overhaul San Quentin prison, emphasizing rehab, supra, note 17

[19] California to overhaul San Quentin prison, emphasizing rehab, supra, note 17

[20] California to transform infamous San Quentin prison with Scandinavian ideas, rehab focus, supra, note 16

[21] California to overhaul San Quentin prison, emphasizing rehab, supra, note 17

[22] Cinnamon Jazer, North Dakota Reforms its Prisons, Norwegian Style, U.S. News & World Report (Feb. 22, 2019), https://www.usnews.com/news/best-states/articles/2019-02-22/inspired-by-norways-approach-north-dakota-reforms-its-prisons.

[23] Id.; Cheryl Corley, North Dakota Prison Officials Think Outside The Box To Revamp Solitary Confinement, NPR (July 31, 2018), https://www.npr.org/2018/07/31/630602624/north-dakota-prison-officials-think-outside-the-box-to-revamp-solitary-confineme.

[24] North Dakota Prison Officials Think Outside The Box To Revamp Solitary Confinement, supra, note 24

[25] David H. Cloud, Dallas Augustine, Cyrus Ahalt, Craig Haney, Lisa Peterson, Colby Braun & Brie Williams, “We just needed to open the door”: a case study of the quest to end solitary confinement in North Dakota, 9 Health & Just. 28 (2001), https://healthandjusticejournal.biomedcentral.com/articles/10.1186/s40352-021-00155-5.

[26] North Dakota Prison Officials Think Outside The Box To Revamp Solitary Confinement, supra, note 24

[27] SCI Chester, Pennsylvania Dept. of Corr. (last visited Apr. 13, 2023), https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Chester.aspx.

[28] Focus on Rehabilitation: Pennsylvania Department Of Corrections Unveils ‘Little Scandinavia’At SCI Chester, Pennsylvania Pressroom,(May 5, 2022), https://www.media.pa.gov/pages/Corrections_details.aspx?newsid=541.

[29] Id.

[30] Id.

[31] The Crime Rep. Staff, ‘Little Scandinavia’ Transforms a Prison, The Crime Rep. (Oct. 11, 2022), https://thecrimereport.org/2022/10/11/little-scandinavia-transforms-a-u-s-prison/.

[32] Focus on Rehabilitation: Pennsylvania Department of Corrections Unveils ‘Little Scandinavia’ At SCI Chester, supra, note 29

[33] ‘Little Scandinavia’ Transforms a Prison, supra, note 32

[34] Focus on Rehabilitation: Pennsylvania Department of Corrections Unveils ‘Little Scandinavia’ At SCI Chester, supra, note 29

[35] Michael Kleiner, “Little Scandinavia” comes to Pennsylvania, The Norwegian Am. (June 21, 2022), https://www.norwegianamerican.com/little-scandinavia/.

[36] ‘Little Scandinavia’ Transforms a Prison, supra, note 32

[37] Id.

[38] Article from annual report 2019 – Special Report on Solitary Confinement in Norwegian Prisons (last visited Apr. 14, 2023), https://www.sivilombudet.no/en/news/prevention-torture/article-from-annual-report-2019-special-report-on-solitary-confinement-in-norwegian-prisons/.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Committe against torture asks Sweden to limit solitary confinement, The United Nations (Mar. 12, 2021), https://unric.org/en/committe-against-torture-asks-sweden-to-limit-solitary-confinement/.

[45] In Dialogue with Sweden, Experts of the Committee against Torture Commend the Implementation of Human Rights Standards and Ask about Pre-Trial Detention Conditions, The United Nations (Nov. 10, 2021), https://www.ohchr.org/en/press-releases/2021/11/dialogue-sweden-experts-committee-against-torture-commend-implementation.

[46] Id.

[47] ‘A Prison is a Prison’: Perspectives From Incarcerated Men on the Therupeutic and Punitive Aspects of Halden Prison in Norway, supra, note 3

[48] Id.

[49] Id.

[50] Id.

[51] Terrence P. Thornberry, Jack E. Call, Charles R. Swanson, Margaret M. Shedd & Sam Mitchell, Overcrowding in American Prisons: Policy Implications of Double-Bunking in Single Cells, Nat’l Inst. of Corr. (1982), https://www.ojp.gov/pdffiles1/Digitization/85969NCJRS.pdf.

[52]  Rhodes v. Chapman, 452 U.S. 337, 347-348 (1981).

[53] Kristina Ash, U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence, 3 N.W. J. of Int’l Hum. Rts. 1 (2005), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1018&context=njihr.

[54] International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 14668

 

The Inflation Reduction Act: How an American Law is Rattling the European Union

By Morgan Elmore

Introduction

United States President Joe Biden signed the most significant action taken by Congress to support clean energy and climate change in August 2022, the Inflation Reduction Act. [I] The Act includes many provisions that aim to tackle health care affordability, fair taxing of corporations, and placing America on track with global climate change initiatives. [II] As the name suggests the goal of the Act is to help curb growing inflation rates in the United States and to provide economic relief for American families. [III] However, the name of the act could prove to be misleading as estimates on the impact of the bill suggest that it could have little effect in curbing inflation, and any effects it could have will take time. [IV] The real hallmark of this Act will be the $370 billion of investments in clean energy to lower energy costs for Americans. [V] The passage of the Act has put the U.S. on track to reach its contribution goals under the Paris Agreement. [VI] The Paris Agreement is an international treaty that sets long-term goals for nations to collectively strive to reduce and limit greenhouse gas emissions, currently 194 parties have signed. [VII] A part of the Act’s investments in clean energy will include improved tax credits for electric vehicles and, despite only being one small piece of the Act, the repercussions have potentially significant international effects. [VIII]

Global Impact

While the Inflation Reduction Act is a domestic American law it will have global repercussions that have already put the world on alert. [IX] Specifically, the European Union (EU) has major concerns about international competition. [X] A major provision in the Inflation Reduction Act will eliminate a tax credit for electric vehicles manufactured outside North America. Instead, the electric vehicle tax credit will only be eligible for electric vehicles that were manufactured with at least forty percent of all their materials from either the United States, U.S. free trade agreement partners (Mexico and Canada), or with recycled materials from the United States. [XI] The Act more or less cuts out all electric vehicles manufactured somewhere other than in North America from U.S. tax credits. [XII] This means for European producers of electric vehicle materials and components; manufacturers will be looking to purchase parts from North American producers rather than Europeans in order to maintain tax credit eligibility.

European Commission President Ursula von der Leyen shortly after the signing of the Inflation Reduction Act expressed concerns that both Europe and the U.S. will suffer harm from the trade implications of the electric vehicle tax credits. [XIII] She expressed concerns over a Chinese monopoly on materials used in clean energy that could lead to a trade war. [XIV] EU members are calling the tax credits unfair and discriminatory world trade practice and are calling for all foreign products to be placed on a level playing field. [XV] EU members are further concerned that companies will leave the EU opting to set up shop in North America citing the tax credits as a final push in conjunction with the war in Russia and increasing energy prices in Europe. [XVI] While the EU is certainly the most vocal in their concerns other current trade partners including South Korea have also voiced their concerns on the electric vehicle tax credits and the potential loss of trade relations. [XVII]

Loss of potential electric vehicle tax credits while potentially detrimental for the EU would prove beneficial for the American electric vehicle industry. The money previously spent globally would instead be spent in North America keeping U.S. money in the American economy. This is precisely the purpose of the Inflation Reduction Act. As for European concerns of industries leaving the EU for the United States, again the United States benefits. More domestic industry means more jobs for Americans and a bolster to the struggling economy. President Biden is now faced with outcry from the EU for a bill he believes will benefit the American people and he has received feedback from both sides. [XVIII]

European Response

In response to the Inflation Reduction Act, the EU has formed a task force with U.S. officials to express their concerns regarding the potential loss of trade and in order to maintain close relations with each other. [XIX] Currently, led by French President Macron the EU is asking that the U.S. grant an exception to the tax for EU member states. That is, they are asking to still receive tax credits for electric vehicles with parts manufactured in the EU. [XX] This would be the best-case scenario for the EU, however, other options are being presented. These include bringing the issue to the World Trade Organization or imposing regulatory tariffs. [XXI] While the outcry against the Inflation Reduction Act is loud not all share the same level of concern.

The EU in actuality produces only a small fraction of electric vehicles in the U.S. currently and they themselves have imposed tariffs much higher than the U. S’s on electric vehicle imports. [XXII] Furthermore, the EU also provides incentives for EU materials for electric vehicle components. [XXIII] Considering these facts, it would seem the EU is being sanctimonious calling out the U.S. for practices they already engage in themselves. Why then is the EU so concerned over the electric vehicle tax credits when the actual effects could be quite minimal?

The timing of the Inflation Reduction Act is likely playing into the potentially overblown concerns and outcry of the EU. The war in the Ukraine has now been waged for over a year and the European economy has suffered. [XXIV] The EU was previously dependent on Russian oil and gas imports and following embargos on Russia in response to their war on the Ukraine, Europe has faced significant energy price increases. [XXV] Europe is now facing long-term challenges of energy security. This has likely fueled much of the outcry. Outside their conversations with the U.S., EU member countries are discussing possible ways to combat the potential loss of trade internally within the EU. These conversations have led to some EU divisions as some countries have different ideas on how to approach the issue internally. [XXVI]

Conclusion

Back in the U.S., Biden has been sympathetic to the EU and has listened to their concerns, however, not all in the U.S. share this sentiment. Five U.S. groups have sent letters to President Biden asking for him to not make any changes to the electric vehicle tax credits on behalf of the EU. These groups include Public Citizen, the United Steelworkers, the United Auto Workers, the International Association of Machinists and Aerospace Workers and the Sierra Club. [XXVII] These groups would all benefit from increased manufacturing jobs created from European industries moving to the U.S.

The future of the electric vehicle tax credits is unclear but presently no formal changes have been made to the Inflation Reduction Act. The EU continues domestic conversations alongside its international conversations with the U.S. The electric vehicle tax credits created by the Inflation Reduction Act are set to begin in 2024. [XXVIII].

I. Sobczyk , N. (2022). Democrats take climate victory lap as Congress leaves town. Environment and Energy Daily.

II. Smith, K. A. (2022, August 23). The inflation reduction act is now law-here’s what it means for you. Forbes. Retrieved March 4, 2023, from https://www.forbes.com/advisor/personal-finance/inflation-reduction-act/.

III. Kim, J. (2022, August 13). What the inflation reduction act does and doesn’t do about rising prices. NPR. Retrieved March 4, 2023, from https://www.npr.org/2022/08/11/1116229743/inflation-reduction-act-questions-answered.

IV. Voegele, H., & Ugalde, A. (2022, August 24). What’s in the Inflation Reduction Act? The National Law Review. Retrieved March 4, 2023, from https://www.natlawreview.com/article/what-s-inflation-reduction-act.

V. The United States Government. (2023, February 14). Inflation reduction act guidebook. The White House. Retrieved March 4, 2023, from https://www.whitehouse.gov/cleanenergy/inflation-reduction-act-guidebook/.

VI. Jackson, S., & Hellmich, M. (2023, February 8). The inflation reduction act (IRA) and the EU . E3G. Retrieved March 4, 2023, from https://www.e3g.org/publications/the-inflation-reduction-act-ira-and-the-eu/.

VII. United Nations. (n.d.). The Paris Agreement. United Nations. Retrieved March 4, 2023, from https://www.un.org/en/climatechange/paris-agreement.

VIII. Bray, S. (2022, November 30). How the inflation reduction act and pillar two could shape the future of EU competitiveness. Tax Foundation. Retrieved March 4, 2023, from https://taxfoundation.org/macron-biden-eu-subsidies/.

IX. Id.

X. Guerry, M. (2022). EU Chief Calls On US To Fix Tax Law’s ‘Distortions’. Law360, 339(101).

XI. Portuondo, N. (2022). Manchin warns Treasury about EV credit implementation. Environment and Energy Daily, 10(9).

XII. 17, F., & Singh, K. (2023, February 17). U.S. trade official Tai discussed inflation reduction act with EU’s Dombrovskis. Nasdaq. Retrieved March 4, 2023, from https://www.nasdaq.com/articles/u.s.-trade-official-tai-discussed-inflation-reduction-act-with-eus-dombrovskis.

XIII. Buell, T. (2022). EU Wants Simplified Aid Rules To Counter US Tax Law. Law360, 348(15).

XIV. Id.

XV. Blenkinsop, P., Thomas, L., & Rinke, A. (2023, February 1). Explainer: Why the U.S. Inflation Reduction Act has rattled Europe. Reuters. Retrieved March 4, 2023, from https://www.reuters.com/markets/why-us-inflation-reduction-act-has-rattled-europe-2023-02-01/.

XVI. Bray, S. (2022, November 30). How the inflation reduction act and pillar two could shape the future of EU competitiveness. Tax Foundation.

XVII. Id.

XVIII. Lyskawa, M. (2023). Groups Tell Biden Not To Back Down To EU Trade Threats. Law 360.

XIX. Launch of the US-EU Task Force on the Inflation Reduction Act. European Commission – European Commission. (2022, October 26). Retrieved March 4, 2023, from https://ec.europa.eu/commission/presscorner/detail/en/statement_22_6402.

XX. Bray, S. (2022, November 30). How the inflation reduction act and pillar two could shape the future of EU competitiveness. Tax Foundation.

XXI. Jackson, S., & Hellmich, M. (2023, February 8). The inflation reduction act (IRA) and the EU, E3G.

XXII. Meyers, Z. (2023, January 30). Europe needs to dial down its anxiety over the Inflation Reduction Act. POLITICO. Retrieved March 4, 2023, from https://www.politico.eu/article/us-europe-electric-car-needs-to-dial-down-its-anxiety-over-the-inflation-reduction-act/.

XXIII. Id.

XXIV. Casey, R. (2023). HOW THE RUSSIAN INVASION OF UKRAINE IS TESTING THE MIGHT OF INTERNATIONAL LAW. Global Litigator, 49(13).

XXV. Katser-Buchkovska, N. (2022, April 29). The consequences of the war in Ukraine will be far-reaching. World Economic Forum. Retrieved March 4, 2023, from https://www.weforum.org/agenda/2022/04/an-unfair-war-economic-social-and-security-consequences-of-the-russian-invasion-into-ukraine/.

XXVI. Nussbaum, A., Rosskopf, K., & Nienaber, M. (2022, December 15). Inflation reduction act: Macron calling for EU to match US green subsidy package. Bloomberg.com. Retrieved March 4, 2023, from https://www.bloomberg.com/news/articles/2022-12-15/macron-implores-europe-to-match-biden-s-green-subsidy-package?leadSource=uverify+wall.

XXVII. Lyskawa, M. (2023). Groups Tell Biden Not To Back Down To EU Trade Threats. Law 360.

XXVIII. “H.R.5376 – 117th Congress (2021-2022): Inflation Reduction Act of 2022.” Congress.gov, Library of Congress, 16 August 2022, https://www.congress.gov/bill/117th-congress/house-bill/5376.

 

After the Tourists Leave: A Brief Look Into the Effects of Ghana’s Over-Reliance on Tourism & The Year of Return Initiative

By Ama Owusuaa Ackom Yarboi

Through the Coastal plains of West Africa, Ghana remains a hotspot for tourists. On the coastal shores of Ghana, Elmina Castle — the first castle built by the Portuguese in 1482 — still stands. However, Ghana’s attraction to tourists is not linked exclusively to the country’s colonial past. In contemporary times, Ghana has remained one of the most peaceful countries in Sub-Saharan Africa [1]. In 2019, Ghana’s President Nana Akufo-Addo announced The Year of Returninitiative. The initiative was introduced to incentivize Africans in the diaspora to trace their African roots[2] and learn about the history of the Trans-Atlantic slave trade. Aside from its economic benefits, tourism contributes to the revitalization of arts, crafts, and culture[3].

In December, Ghanaians who do not have the opportunity to visit Ghana follow the antics and enjoyment of their diaspora peers on Twitter, Snap Chat, TikTok, and Instagram among others. On these platforms, it seems like Accra, the capital city, has been transformed overnight. From December through January, the city does not sleep, and the stories posted leave one feeling nostalgic about life in the tropics while winter’s frost and chill settle in. On social media, everything looks perfect. Yet, one cannot help but notice that the prices of goods and services are displayed in U.S. dollars. Even in January when the tourists have left and the dust in Accra has settled, dollar signs remain on various advertisements despite the Bank of Ghana prohibiting the pricing of goods and services in foreign currencies[4]. The Bank of Ghana placed such limits on advertisements and foreign exchange services to stop the depreciation of the cedi and (BBC, 2014 )ensure the continued use of the Ghana cedi as the legal tender of the country[5]. This limit was also an attempt to stabilize the economy. While this pricing might suit the palate of tourists outside the country, it inflates the property value of properties[6] in Accra as locals struggle to keep up.

While an influx of tourists during December and January boosts the city’s economy and attracts foreign investors, “tourism has a direct effect on the quality of life for local residents, often resulting in their displacement[7].” The Ghanaian Constitution prohibits foreigners from owning land in Ghana and limits them to leaseholds of no more than fifty years.[8]” One of the provisions of the Year of Return initiative which angered most Ghanaians was the special land deal[9] offered to visitors to incentivize them to become naturalized. Since foreigners may not own land unless they become naturalized, these special land deals incentivize investors to obtain citizenship and enjoy the perks that come with naturalization. (USAID, 2016 )Provisions such as these have worsened Accra’s already dire land and housing crisis.

The traders at the  Kaneshie market are feeling the heat of the scorching African sun and the higher cost of living. An article in The Guardian highlights the dire situation of one trader to the point that she has decided to eat once a day,[10] as compared to her previous thrice a day, to save money. The traders around echo her sentiments. “Food prices in Ghana have risen by 30% over the last year. Energy costs have also climbed sharply, and inflation is running at 27%, according to the country’s statistics authorities[11].” As Ghana’s central bank raises interest rates[12] to handle the rising national debt, the government has not backed away from building a national cathedral in the midst of the crisis the country faces. While the current president looks at the construction of the cathedral as a religious symbol, some citizens believe that this is an attempt by the government to capitalize even more heavily on tourism. In an interview with the British Broadcasting Corporation (BBC), the finance minister emphasized that the cathedral would increase tourism and generate more revenue for the local economy [13].  It is this over-reliance on tourism which leads traders and business owners alike to inflate prices during peak tourist seasons. In desperation, these people try to make a substantial amount of money from tourists before the season dies down and they are left desolate again. As Ghana and Accra rebrand to attract the diaspora community, locals are priced out of everything. Locals are not considered in the market because they have less purchasing power as compared to tourists.

Nonetheless, Ghana’s declining economic growth cannot be placed squarely on the shoulders of an initiative that was meant to encourage oneness among people of African origin. The COVID-19 pandemic and a growing national debt[14]might be part of the root causes of this increase in the cost of living. These causes added to an influx of tourists during a particular season does not solve the problem but only postpones its solution to the months when the tourist have left.  As one of the leading exporters of cocoa and gold[15], Ghana’s overreliance on tourism baffles many. The International Trade Administration projects that The Ghanaian Ministry of Tourism, Arts and Culture (MoTAC) will generate $2.1 billion[16] in revenue this year. Although tourism’s revenue is substantial, it cannot be the only way to tackle the 467.4 billion cedis ($37.4 billion) national debt[17]. The former minister of finance explained that this debt was more than 100%[18] of the country’s GDP.

While the Year of Return initiative is formidable, the problems within the Ghanaian economy cannot be solved by the revenue generated by tourism alone. Even if Ghana decided to use all the money from tourism against the national debt, the revenue from tourism would only chip down 6% of the national debt. An overreliance on tourism does not fix the economic problems faced by the country, rather, it postpones finding solutions to tackle a bigger problem.

[1]  Sasu, D. D. (2023). Annual Global Peace Index in Ghana. Statista.

[2] (BBC, 2020)

[3] . (Frempong & Deichmann, 2017)

[4] (BoG, 2023)

[5] (BBC, 2014 )

[6] (Erezi, 2021)

[7] (Glup, 2021)

[8] (USAID, 2016 )

[9] (Paquette, 2020)

[10] (Akinwotu, 2022)

[11] (Akinwotu, 2022)

[12] (Akinwotu, 2022)

[13] (BBC, Why the Ghana National Cathedral Project Causes Controversy, 2022)

[14] (Kent, 2022)

[15] (Kent, 2022)

[16] (Commission)

[17] (Savage & Jones, 2022)

[18] (Savage & Jones, 2022)

REFERENCES

Akinwotu, E. (2022). Lean Times for Ghana’s Yam Traders As Cost of Living Crisis Bites. Accra : The Guardian . Retrieved from https://www.theguardian.com/world/2022/jul/06/ghana-yam-traders-cost-of-living-food-prices-rise

BBC. (2014 ). Ghana limits dollar transactions to protect cedi. Accra : British Broadcasting Corporation . Retrieved from https://www.bbc.com/news/world-africa-26064127BBC, N. (2020). African Diaspora: Did Ghana’s Year of Return attract foreign visitors? BBC News. Retrieved from https://www.bbc.com/news/world-africa-51191409

BBC, N. (2022). Why the Ghana National Cathedral Project Causes Controversy. Accra: BBC News. Retrieved from https://www.bbc.com/pidgin/articles/cmml11mye5mo

BoG, B. o. (2023). Prohibition of Pricing, Advertising, Receipting and/or Making Payments for Goods and Services in Foreign Currency in Ghana. Retrieved from https://www.bog.gov.gh/news/prohibition-of-pricing-advertising-receipting-and-or-making-payments-for-goods-and-services-in-foreign-currency-in-ghana/

International Trade Administration, U.S Department of Commerce.

Erezi, D. (2021). Accra Ranks Higher Than Lagos, Johannesburg, Nairobi And Cairo Among African Cities With The Most Expensive Property Prices. Business Insider, Africa. Retrieved from https://africa.businessinsider.com/local/markets/accra-ranks-higher-than-lagos-johannesburg-cairo-among-african-cities-with-most/f72046l

Frempong , F., & Deichmann, J. I. (2017). Ghanaian Hospitality Professionals’ Perceptions Of International Tourism Impacts. GeoJournal , 273-291.

Glup, M. (2021). Tourism’s Impacts on Local Populations. Nebtraska Anthropologist , 29, 50-66. Retrieved from https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1194&context=nebanthro

Kent, E. (2022). How Ghana, Africa’s Rising Star, Ended Up In Economic Turmoil. Accra : Al Jazeera . Retrieved from https://www.aljazeera.com/features/2022/12/31/how-ghana-africas-rising-star-ended-up-in-economic-turmoil

Paquette, D. (2020). Ghana to black Americans: Come home. We’ll help you build a life here. Accra : The Washington Post . Retrieved from https://www.washingtonpost.com/world/africa/ghana-to-black-americans-come-home-well-help-you-build-a-life-here/2020/07/03/1b11a914-b4e3-11ea-9a1d-d3db1cbe07ce_story.html

Sasu, D. D. (2023). Annual Global Peace Index in Ghana. Statista. Retrieved from https://www.statista.com/statistics/1173244/annual-global-peace-index-in-ghana/#:~:text=As%20of%202022%2C%20Ghana%20achieved,Saharan%20Africa%20and%20West%20Africa.

Savage , R., & Jones, M. (2022). Explainer: Who Holds Ghana’s Debt And What Restructuring Is Planned? Johannesburg / London : Reuters. Retrieved from https://www.reuters.com/world/africa/who-holds-ghanas-debt-what-restructuring-is-planned-2022-12-09/

USAID. (2016 ). Ghana: Property Rights And Resource Governance Profile . Accra : United States Agency for International Development . Retrieved from https://www.land-links.org/country-profile/ghana/#1528471614497-67e582db-43fe

 

FBI Calls on Parents and Educators to Help Stop Global Financial Sextortion

By Abby Roos

For many teenagers in America, the internet has become an essential part of their daily lives. The internet allows teenagers to communicate with friends and family across state and country lines on various popular platforms. For example, social media platforms, such as Instagram, TikTok, and Snapchat, have allowed teenagers to share life developments and fond memories by posting pictures and videos for their followers or other users to see. However, many teenagers do not fully grasp the dangers associated with using these platforms.

In the early 2000s, the European Union funded a SafeBorders project, which would create safer internet action plans. [1]With its first safer internet action plan, SafeBorders created Safer Internet Day. [2] On Safer Internet Day, which occurs every February, teachers, parents, organizations, and politicians are called upon to help provide a safer and better digital environment for children. [3] The creators of Safer Internet Day had two goals in mind: raising awareness and influencing countries and governments to protect children while they use the internet. [4]

On Tuesday, February 7, 2023, the day the Safer Internet Day celebrated its 20th Anniversary, the FBI and its International Law Enforcement partners issued a Joint Warning about the increasing dangers of the internet-based crime called Global Financial Sextortion. [5] The goal of the joint warning is to educate children and adults about the crime, with the goal that educating children about internet crimes would help protect children from being victimized. [6]

What is Financial Sextortion?

According to the National Center for Missing and Exploited Children (NCMEC), sextortion is when “children are threatened or blackmailed, most often with the possibility of sharing with the public a nude or sexual images of them, by a person who demands additional sexual content, sexual activity or money from the child.” [7] There are two common types of sextortion: traditional and financial.

Traditional sextortion “occurs when a victim is threatened or blackmailed into providing more sexual imagery.” [8]Typically, perpetrators of traditional sextortion target young girls and demand more sexual images. [9]

Financial sextortion, the focus of the Joint Warning, “occurs when a predator demands money or gift cards in exchange for keeping their sexual images private.” [10] Typically, these perpetrators target teenage boys as victims. [11] According to various national and international agencies, the current trend of financial sextortion predators is to target minor males between 14 and 17 years old as the primary victim group. [12]

What do Financial Sextortion Schemes look like?

While financial sextortion can occur anywhere, it mostly occurs on digital platforms like social media websites or game websites. [13] For many teenagers and children, social medial platforms and gaming websites are an essential part of their lives, so they spend a lot of time on those platforms and are comfortable with them.

There are various ways predators can obtain their desired sexual photos or videos from their victims. In some cases, the victim shares the photos or videos with accounts they believe belong to someone they know and trust. [14] In most cases, however, the victim is targeted by a stranger they “met” on an online platform. [15]

To gain attention from the male victim, these predators often create fake profile accounts pretending to be girls similar in age to the victim. [16] Then, through either promises of financial gains or promises of a romantic relationship, the predators entice the victim to send them sexually explicit videos or photos. [17] After gaining their desired content, the predators threaten to release the sexual material unless they are given money or gift cards. [18] For many victims, the threat of releasing the material, combined with the fear of getting in trouble with parents or police, is scary enough to send the requested money to the predator. Often, even if they received the requested money from the victim, the predators release the content anyway. [19]

What Makes Financial Sextortion a Global Problem?

Financial sextortion predators, like many other online sexual crimes, do not follow the political boundaries that mark the borders of different countries. [20] It is not unusual for multiple perpetrators to work together to commit financial sextortion. [21] In many cases, one suspect asking for the photos or videos lives in one jurisdiction, while another suspect is collecting the money in another jurisdiction. [22] Since these predators live in multiple jurisdictions, it is difficult for United States law enforcement agencies, working within the United States only, to arrest everyone responsible. As a result, FBI Director Christopher Wray reported that “[t]he FBI is working hand-in-hand with our international partners to prevent children from becoming victims of this tragic crime.” [23]

Combined International Response

Created to protect children and address the global problem of child sexual abuse, the Virtual Global Taskforce (VGT) is an international alliance of fifteen different law enforcement agencies [24] that work together to stop many crimes against children, including financial sextortion. [25] The VGT was created as a “direct response to the rise in offenders targeting children all over the world through online social interactions, and travelling overseas to commit contact sexual abuse.” [26] The VGT’s objectives are to make the internet a safer place for everyone, “to identify, locate and help children at risk,” and “to hold perpetrators appropriately to account.” [27]

According to the Chair of the VGT, Robert Jones, in a statement provided in the Joint Warning, “[i]nternational cooperation has never been more important in tackling the threat of online child sexual abuse. The strength of the Virtual Global Taskforce (VGT) comes from being able to share expertise and take rapid coordinated action against emerging global trends such as the rising threat of financial extortion.” [28]

If there is already an international response, why did the FBI and its international partners release the warning?

Even though both national and international law enforcement organizations are willing to work together to track many of these predators down, they cannot track criminals when they are unaware a crime occurred. Many victims are afraid of coming forward because they think they have done something wrong and fear that they will get punished by their parents, carers, or the police. The organizations involved in the joint warning want victims to understand that they did nothing wrong, and by reaching out, the organizations can help the victims get justice and help stop others from being victimized. [29]

How Can Parents Help Law Enforcement?

In addition, the FBI and its international partners are calling on parents and educators to help make children aware of financial sextortion and what to do if they find themselves victims. [30] Children might not always recognize fake identities. But, if they are taught the red flags of financial sextortion, children will be in a better position to avoid sending photos or know what to do if they become victims. According to the NCMEC, the red flags include accounts that immediately request nudes after friending a child on a social media platform, ask to move communications from the original platform to another, pretend to work for a modeling agency and request photos of the child, and use reciprocations to coerce a picture from the child (“I’ll show you, if you show me”). [31]

Unfortunately, even with the best education, victims will still exist. As a result, the FBI and its partners want to inform parents and children what to do if they become victims. The NCMEC and FBI highlight four important points to remember:

  1. If a victim sends sexual images or videos to a perpetrator, go to the police, the NCMEC, the FBI, or another organization before sending money to the perpetrator because the perpetrator will rarely stop after receiving the money.
  2. If you or someone you know is a victim:
    • Report the account on the social media platform.
    • Block the account, but do not delete the messages or the victim’s profile- this information might help law enforcement track down the perpetrator.
  3. Remember the perpetrator is to blame, not the victim. The victim might regret sending the pictures, but the perpetrator committed a crime.
  4. There is life after the images, even if it does not feel like it.[32]

[1] Safer Internet Day, The European Commission (last updated Feb. 7, 2023), https://digital-strategy.ec.europa.eu/en/policies/safer-internet-day#:~:text=Safer%20Internet%20Day%20promotes%20a,in%20the%20online%20safety%20calendar.

[2] Id.

[3] Id.

[4] Id.

[5] International Law Enforcement Agencies Issue Joint Warning about Global Financial Sextortion Crisis, Federal Bureau of Investigation National Press Office (Feb. 7, 2023), https://www.fbi.gov/news/press-releases/international-law-enforcement-agencies-issue-joint-warning-about-global-financial-sextortion-crisis.

[6] Id.

[7] Sextortion, National Center for Missing & Exploited Children (last visited Mar. 5, 2023), https://www.missingkids.org/sextortion#redflags.

[8] Sextortion: It’s More Common than You Think, Department of Homeland Security- ICE (last updated Feb. 7, 2023), https://www.ice.gov/features/sextortion.

[9] Online Harms: Sextortion, Cybertip.ca (last visited Mar. 5, 2023), https://www.cybertip.ca/en/online-harms/sextortion/.

[10] Sextortion: It’s More Common than You Think,supra note 8.

[11] Online Harms: Sextortionsupra note 9.

[12] Sextortion is Real and It’s Happening in Alberta More than Ever Before, ALERT- Alberta Law Enforcement Response Teams (last visited Mar. 5, 2023), https://alert-ab.ca/public-knowledge/sextortion/; FBI and Partners Issue National Public Safety Alert on Financial Sextortion Schemes, U.S. Department of Justice (last updated Dec. 22, 2022), https://www.justice.gov/usao-or/pr/fbi-and-partners-issue-national-public-safety-alert-financial-sextortion-schemes; Sextortion: It’s More Common than You Thinksupra note 8; Sextortion, Australian Centre to Counter Child Exploitation (last visited Mar. 5, 2023), https://www.accce.gov.au/sextortionhelp.

[13] International Law Enforcement Agencies Issue Joint Warning about Global Financial Sextortion Crisis, supra note 5.
[14] Sextortionsupra note 7.
[15] Id.
[16] International Law Enforcement Agencies Issue Joint Warning about Global Financial Sextortion Crisissupra note 5.
[17] Sextortion: It’s More Common than You Thinksupra note 8.
[18] Id.
[19] International Law Enforcement Agencies Issue Joint Warning about Global Financial Sextortion Crisissupra note 5.
[20] Id.
[21] Sextortion is Real and It’s Happening in Alberta More than Ever Beforesupra note 12.
[22] Id.
[23] International Law Enforcement Agencies Issue Joint Warning about Global Financial Sextortion Crisissupra note 5.

[24] These forces include the National Crime Agency, the Dutch National Police, the European Union Agency for Law Enforcement Cooperation, the Korean National Police Agency, the Ministry of Interior for the United Arab Emirates, the Philippine National Bureau of Investigations, the Philippines National Police, the Kenya National Police Service, the New Zealand Police, the Australian Federal Police, the Colombian National Police, the FBI, ICE Homeland Security Investigations, the Royal Canadian Mounted Police, and the International Criminal Police Organization (Interpol). Tackling the Global Threat From Child Sexual Abuse, National Crime Agency (last visited Mar. 5, 2023), https://nationalcrimeagency.gov.uk/virtual-global-taskforce/.

[25] Id.
[26] Virtual Global Taskforce, Australian Federal Police (last visited Mar. 5, 2023), https://www.afp.gov.au/what-we-do/crime-types/child-protection/virtual-global-taskforce.
[27] Id.
[28] International Law Enforcement Agencies Issue Joint Warning about Global Financial Sextortion Crisissupra note 5.
[29] Id.
[30] Id.
[31] Sextortionsupra note 7.
[32] Sextortionsupra note 7; International Law Enforcement Agencies Issue Joint Warning about Global Financial Sextortion Crisissupra note 5.

A Cheese by Any Other Name: The Impact of Geographical Indications on International Agricultural Trade

By Dillon Lightfoot

With United States (U.S.) agricultural exports reaching all-time highs, the U.S. Department of Agriculture (USDA) recently reported $196 billion in agricultural exports for the fiscal year 2022, Geographical Indications (GIs) have become a major sticking point in the battle between the U.S. and the European Union (EU) for international market dominance.[1]

What are GIs?

A GI is a mark or sign that identifies a product as having originated from a particular region or locality.[2] GIscommunicate to consumers that the labeled product contains inherent qualities resulting from its origination or production in a particular region.[3] GI protections can be granted to all sorts of goods; however, their greatest economic impact lies in the designation of agricultural products, primarily dairy, wine, and spirits. Some studies have shown that products containing a GI certification are sold for on average twice as much as equivalent products without GI certification.[4]

GIs work similarly to trademarks, as both provide intellectual property protections. At the international level, GIs are recognized through the World Trade Organization (WTO) Agreement on Trade-Related Aspect of Intellectual Property (TRIPS Agreement), the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (Lisbon Agreement), and the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (Geneva Act). All 164 members of the WTO are parties to the TRIPS Agreement, agreeing to provide legal means for the application and enforcement of GI certifications.[5] The Lisbon Agreement paired with the Geneva Act protects Appellations of Origin (AOCs), certifications for products whose quality and characteristics are due exclusively to their geographic origin, and GIs more broadly than the TRIPS Agreement.[6] However, the Lisbon Agreement is only recognized by 10 parties, including the EU, and the Geneva Act is only recognized by 15 parties, including the EU.[7]

In the European Union, GIs are certified as Protected Designations of Origin (PDOs), Protected Geographical Indications (PGIs), Geographical Indications (GIs), and Traditional Specialty Guaranteed (TSG).[8] PDO certifications are for food, agricultural products, and wine that are produced, processed, and prepared in a specific region.[9] PGI certifications are for food, agricultural products, and wine that are produced, processed, or prepared in a specific region.[10] GI certifications are for spirit products that are distilled or prepared in a specific region.[11] TSG certifications are for food and agricultural products prepared or produced using traditional methods, as opposed to originating from a specific region.[12]

In the United States., GIs designations are implemented using the same methods as trademarks through the U.S. Patent and Trademark Office (USPTO).[13] Specifically, the USPTO issues certification and collective marks.[14]Certification marks indicate a product’s quality as determined by its region of origin, material, or mode of manufacture.[15] Collective marks indicate that a product’s producer is a member of a cooperative, collective, association, or union.[16]

Conflict Between GIs in the U.S. and EU

Conflicts between the U.S. and EU systems of GI protections arise from differences in the determination of generic terms. A generic term is a common name or mark which has become customary in common language and is used to describe a class or category of products.[17] Like with trademarks, both the U.S. and EU recognize that generic terms are not eligible for GI certification.[18] Further, this determination is memorialized in the TRIPS Agreement.[19] The application of generic terms in the U.S. allows producers to market products in the EU that they would otherwise not be able to, given their certification as GIs.

Examples of the interplay between GI certifications and generic terms in the EU are exemplified in the cases of Parmigiano Reggiano and Feta cheese. In these cases, the European Court of Justice (ECJ) outlined the deterministic factors for genericness as: “a) the existing situation in the Member State in which the name originates and in areas of consumption, b) the existing situation in other Member States, and c) the relevant national or Community laws.”[20] In both cases, the ECJ determined that the names of the products were not generic terms and allowed both Italy and Greece respectively to retain their GI certifications.[21]

Alternatively, an example from the U.S. where the generic nature of a product name is upheld is the case of Gruyère. In 2015, the Swiss company Interprofession du Gruyère and the French company Syndicat Interprofessionnel du Gruyère filed a trademark application for the cheese Gruyère which was challenged by the United States Dairy Export Council and other U.S.-based agricultural organizations.[22] The U.S. District Court for the Eastern District of Virginia determined that contemporary consumers understood Gruyère as a type of cheese, rather than a place of origin, and as such, Gruyère is a generic term.[23] This shift in consumer understanding is the hallmark of generic term determination in U.S. trademark law.[24] In determining whether a term has become generic, U.S. courts look to customer perception, dictionary definitions, and market practices of consumers and producers.[25] Resulting of the Gruyère decision, U.S. producers retain the ability to market products as Gruyère within the U.S. Meanwhile, in the EU, France retains GI certification for Gruyère. French retention of GI certification for Gruyère limits market access for U.S. producers within the EU and within any country recognizing EU GI certifications pursuant to a free trade agreement.

Trade Examples

Limitations in market access, like those in the case of Gruyère, have developed into a point of contention between the U.S. and EU. Further, these contentions spill over into bilateral free trade negotiations between the U.S., EU, and third countries. Over the last decade, both the U.S. and EU have competed for market access in numerous countries by simultaneously negotiating free trade agreements where each seeks to propagate favorable GI policies. The EU’s goal is to expand their GI practices in other countries to ensure EU producers holding GI certifications solely retain market access for their GI-certified products.[26] The U.S. goal is not to diminish GI protections, but to expand the market access of U.S. producers through the recognition of generic terms internationally.[27]

Close to home, the EU has negotiated free trade agreements with both Canada and Mexico that include recognitions of large numbers of European GI recognitions.[28] Beginning in 2016, the EU and Mexico began renegotiating the EU-Mexico Trade Agreement (EUMTA), which has been in place since 1997.[29] By 2018, both parties reached an agreement in principle that expanded the recognition of European GIs in Mexico significantly.[30] This agreement in principle lists hundreds of European-held GIs that Mexico would be required to protect.[31] Mexico recognizing these European GIs would effectively prohibit U.S. producers from selling equivalent products in Mexico. Among the European GIs listed in the agreement in principle are Asiago and Gruyère, both of which are generic terms in the U.S. and products marketed by many U.S. producers.[32] Further, U.S. producers are increasingly frustrated with the EU’s attempts to monopolize Mexican markets, with respect to certain goods, because U.S. producers played a significant role in boosting those same products popularly in Mexico.[33] For example, U.S. dairy producers are largely responsible for the popularity of Asiago in Mexico and are now on the brink of losing access to that market altogether.[34]

Similarly, in Canada, the EU has engaged in similar tactics in negotiating the EU-Canada Comprehensive Economic and Trade Agreement (CETA). Signed in 2016, CETA went provisionally into force in 2017.[35] In addition to recognizing 171 European GIs, CETA significantly removes customs duties on agricultural products traded between both parties.[36] These moves are costly to U.S. producers as Canada is a major U.S. trading partner for agricultural goods, totaling $25 billion in exports in 2021.[37]

Moves by the EU to limit U.S. market access in Canada and Mexico are particularly costly considering the commitment to trade memorialized in the U.S.-Mexico-Canada Agreement (USMCA), signed in 2020.[38] The USMCA emphasizes transparency in the GI application process and an open period for opposition to GI designations.[39]Additionally, parties to the USMCA agree that terms customary in common language, or generic as referred to in the U.S., are ineligible for GI certification.[40] The procedures outlined for determining a term customary in common language are like procedures applied in U.S. courts when determining if a term is generic.[41] These procedures also lean on market practices, dictionary definitions, and consumer perception.[42]

Similar trends exist in free trade agreements negotiated with other countries. In Japan, both the U.S. and the EU have recently negotiated new trade agreements.[43] The EU-Japan Agreement pushes for increased recognition of European GIs, including 28 new GIs recognized by Japan in 2021.[44] Stated U.S. negotiation goals for an agreement with Japan placed focus on transparency GI in application and opposition procedures and a shared focus on the preservation of generic terms.[45] The U.S. stated similar goals in their negotiations for the UK-U.S. Free Trade Agreement (UKUSFTA).[46] In a public hearing between the Office of the U.S. Trade Representative (USTR) and interested stakeholders, USTR representatives advocated the propagation of a recognized list of generic terms in the UKUSFTA and future negotiations.[47] However, no progress on such a list has been reported. Meanwhile, the EU continues to push for increased GI recognition, this time pushing Australia to recognize 400 European GIs.[48] Moving forward, if the U.S. does not develop points of negotiation that protect and expand generic terms of agricultural products, U.S.-based agricultural producers will experience significant barriers to trade moving forward.

[1] Press Release No. 0032.23, U.S. Dep’t of Agric., 2022 Was Another Record Year for U.S. Farm Exports, (Feb. 10, 2023) (on file with author).

[2] U.S. Pat. and Trademark Off., Geographical Indications (Dec 6, 2022), https://www.uspto.gov/ip-policy/trademark-policy/geographical-indications.

[3] Id.

[4] European Commission, Directorate-General for Agriculture and Rural Development, Study on Economic Value of EU Quality Schemes, Geographical Indications (GIs) and Traditional Specialties Guaranteed (TSGs): final report, (Oct. 2019).

[5] The World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights art. 22, Apr. 15, 1994, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement].

[6] Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, Oct. 31, 1958, 923 U.N.T.S 205 (1974) [hereinafter Lisbon Agreement]; Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, WIPO (May 20, 2015), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_239.pdf [hereinafter Geneva Act].

[7] See Lisbon Agreement; Geneva Act.

[8] European Commission, Geographical Indications and Quality Schemes Explained, https://agriculture.ec.europa.eu/farming/geographical-indications-and-quality-schemes/geographical-indications-and-quality-schemes-explained_en.

[9] 2012 O.J. (L 343) 8.

[10] 2012 O.J. (L 343) 16.

[11] 2012 O.J. (L 343) 4.

[12] 2012 O.J. (L 343) 19.

[13] Supra note 2.

[14] Supra note 2.

[15] 15 U.S.C. § 1127.

[16] Id.

[17] See TRIPS Agreement art. 24.6.

[18] 15 U.S.C. § 1209.01(c); 2012 O.J. (L 343) 8.

[19] See TRIPS Agreement art. 24.6.

[20] Case C-132/05, Comm’n of the European Communities v. Fed. Republic of Ger., 2007 E.C.R. I; Cases C-465/02, Kingdom of Ger. et. al., v. Comm’n of the European Communities, enjoined with C-466/02, Kingdom of Den. et. al., v. Comm’n of the European Communities, 2005 E.C.R. I.

[21] See Case C-132/05 at V; See C-465/02 enjoined with C-466/02 at I.

[22] Interprofession du Gruyère et al., v. U.S. Dairy Export Council et al., No. 1:20-cv-1174. (E.D. Va.) (Memorandum Opinion).

[23] Id. at 32.

[24] Id. at 32.

[25] Id. at 15.

[26] Cong. Rsch. Serv., IF10188, Geographical Indications (GIs) in U.S. Agricultural Trade (2016).

[27] Off. of the U.S. Trade Rep., 2022 Special 301 Report, (Apr. 27, 2022).

[28] EU-Mexico Trade Agreement, art x.29, Apr. 28, 2018, (Agreement in principle) [hereinafter EU-Mexico Agreement]; Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, art. 20.16, Jan. 1, 2017 [hereinafter CETA].

[29] European Commission, Report From the 1st Round of Negotiations for Modernising the Trade Pillar of the EU-Mexico Global Agreement, (Jun. 13-14, 2016).

[30] See EU-Mexico Agreement.

[31] See EU-Mexico Agreement Annex II

[32] Supra note 2; Interprofession du Gruyère et al., v. U.S. Dairy Export Council et al., No. 1:20-cv-1174. (E.D. Va.) (Memorandum Opinion).

[33] Off. of the U.S. Trade Rep., Public Hearing on Negotiating Objectives for a U.S.-Uk Trade Agreement, (2019), at 154.

[34] Id. at 154.

[35] See CETA art. 20.16.

[36] See CETA art. 2.4, annex 20-A.

[37] U.S. Dep’t of Agric., Canada 2021 Export Highlights, (Apr. 14, 2022).

[38] The United States-Mexico-Canada Agreement, U.S.-Mex.-Can., art. 20. 29, agreed to Oct.1, 2018, [hereinafter USMCA].

[39] See USMCA art. 20.30.

[40] See USMCA art. 20.32.

[41] See USMCA art. 20.30; Interprofession du Gruyère et al., v. U.S. Dairy Export Council et al., No. 1:20-cv-1174. (E.D. Va.) (Memorandum Opinion) at 15.

[42] See USMCA art. 20.32.

[43] Agreement between the European Union and Japan for an Economic Partnership, art. 14.22, Dec.27, 2018, O.J. (L 330) [hereinafter EU-Japan Agreement]; Trade Agreement Between the United States of America and Japan. Annex 1, Oct. 7, 2019, T.I.A.S. No. 20-101.2 [hereinafter USJFTA].

[44] See EU-Japan Agreement art. 14.22.

[45] Off. of the U.S. Trade Rep. Exec. Off. of the President, United States-Japan Trade Agreement (USJTA) Negotiations: Summary of Specific Negotiating Objectives (Dec. 2018).

[46] Supra note 32 at page 151.

[47] Supra note 32 at page 151.

[48] Off. of the U.S. Trade Rep. Exec. Off. of the President, United States-United Kingdom Negotiations: Summary of Specific Negotiating Objectives, (2019).