Most pressing question: How do you like your potatoes?
Cannot beat a simple baked potato. I also like some of these small new varietals on the grill with simple seasoning. As I have lectured on over the years, the terroir, or taste of place, of a potato is just like wine. The soil composition and region where the potato is produced create unique potatoes that vary in taste and texture from place to place, even if they are the same genetic variety of potato.
How is retirement treating you? What does your day-to-day look like?
It’s been interesting. I retired in Naples, Florida, near the performing arts center. As you get older, you have different life challenges. My friends seem to like to come to Naples in the winter. I get up at 5:30 a.m. every day. Three days a week, I do an intense hour of physical exercise and therapy, which was recommended by my oncologist, or I have a walk on the beach. Golf. Pickleball. Rotary club. I am very involved in my local Catholic parish. I stay connected to the ABA and AIPLA (AIPPI-US Division). We try to take one international trip a year.
How does a man from Michigan end up defending the Idaho® potato?
Partially my farming background. My parents were both lawyers, which was unique for the time. My mother was the better lawyer by far. We shared a farm with extended family. My sisters were into rodeo shows and barrel racing, and so my parents also had horses and I had to muck the stables. My sisters never mucked a stable—that was my job. Occasionally, I also drove a tractor.
I went to law school in Denver and then moved to Idaho, and I worried that coursework in international law would go to waste, but it was quite the opposite. The twists and turns of fate. Idaho® potatoes have taken me all over the world.
I had been working in the Attorney General’s Office in Idaho, and a group of angry farmers came tramping in on a Saturday morning. My boss and I happened to be in the office working. Then my boss called me on the intercom and said, “These guys are seven of the nine potato commissioners, and they want to fire their executive director. Now go get the job.” He thought I would be a good fit with my background. Eventually, in 1996, I joined the IPC full time.
You had several significant cases during your time at the IPC. Could you talk about one?
Idaho Potato Commission v. M & M Produce Farms & Sales is one of the more significant cases. There were identical twin brothers, the Rogoskis, who were packing non-Idaho® potatoes into Idaho® potato–labeled packages for a third-party produce brokerage firm. They were a former licensee of the IPC. We were not looking for a fight; we just wanted them to fess up and to stop doing it. Eventually, we figured out that they were connected to a known mislabeler of Idaho® potatoes—we even had him on videotape packing non-Idaho® potatoes into mislabeled bags. Things escalated, and we spent $13 million over 13 years and five different federal judges, including now U.S. Supreme Court Justice Sonia Sotomayor. She concurred on an appellate decision that said that there is no license estoppel in certification mark cases. We tried to appeal to the Supreme Court, but they did not pick it up. We have been trying to reform the Lanham Act on this point ever since.
The Court in M & M Produce held that patent cases do not have the doctrine of license estoppel—but trademark cases do recognize license estoppel, so M & M Produce was not estopped from challenging the validity of the IPC’s certification marks?
Exactly. And it is senseless to say that certification marks are more like patents than they are like trademarks.
The U.S. Trade Representative published the 2024 Special 301 Report and identified over-enforcement of GIs in the European Union as a significant trade barrier. Could you talk a bit about the state of GIs generally in U.S. foreign policy?
There was active talk at the U.S. Patent and Trademark Office (USPTO) two years ago about trying to create a system for GI protection in the U.S. At one point, it looked like they would be able to move forward with that, because so many of the people and companies who rely on GIs in the U.S. are just at a competitive disadvantage with no real system in place. But nothing is moving in Washington: just complete gridlock.
Are Big Dairy and dairy marketing boards actively trying to weaken protections for GIs or certification marks?
They are. They really only reluctantly support certification marks at all. There is no question that they have been very effective and proactive in advancing their economic interests. You have to respect the effort that they have made and the relationships that they have built in making sure their views are well represented.
Did you see the Fourth Circuit’s recent decision upholding the USPTO’s decision that “gruyere” was not registrable and thus could be used to label cheeses from outside of the Gruyère region of Switzerland and France? The dairy sector has been touting this decision as a win for agriculture. Do you agree?
It is a win for larger players within the dairy industry who want to keep making cheese under names that are protected as GIs abroad. It’s not a good decision for the smaller dairies or artisan cheesemakers who have been developing amazing local cheeses under regional GIs. It’s analogous to what is happening with American Viticultural Areas (AVAs) as we come out of our COVID daze and people are traveling again in record numbers. There will be a greater understanding of the differences that come from agricultural products that have a unique cache and connection to the land or the environment where they are produced. Small, sustainable agriculture farms are filling our farmers markets with truly fantastic local and regional products, and it’s this value-added agriculture that is the future.
So often the dance at the USPTO has been around standing. It will find one cooperative dairy does not have standing because there are other cooperative dairies for that specific GI cheese, and then the cooperatives spend years trying to band together to take action, and by that time, say with Asiago, the cheese becomes a topping or a bagel flavor at a fast-food chain while the producers are trying to form a coalition to enforce their rights. And then in the U.S., where we are losing so many farms, it seems like the lack of enforceable GI rights is not helping in the long run.
When you think about it, everyone wants to have it both ways. Consumers want cheap food, but they want it to be excellent quality. At some point, the large mechanization of agriculture and consolidation of farmland prevents these small unique producers from entering the market. GIs could help these small producers fetch hirer prices, because some consumers will pay for premium products marketed uniquely.
It does seem that the U.S. Department of Agriculture is incentivizing these value-added producers with grants, supporting micro-agriculture ventures more and more—we are quite literally tasting the fruits of these efforts. Vermont faced some issues with cheaper bulk producers from Québec in the maple syrup industry and built out its state business code to mandate proper statements of origin in labeling and create this curated “maple syrup experience in Vermont.” Is there a lesson there? Why is that not an alternative to a sui generis GI regime?
The IPC had similar stringent provisions within Idaho law. They are complementary, not in opposition to a standalone protection regime. As producers become more active and have success in places like Vermont, they will serve as role models and be replicated in other agriculture producing regions.
We are seeing that in California with cannabis, in addition to robust protection for Napa Valley AVAs for wines.
It just makes sense. There is a growing realization of the connectivity between where something is grown and how it tastes and what makes it unique. At the IPC, I had slides that I would show all over the world demonstrating that genetically identical potatoes grown in, for example, Idaho and Michigan had completely different taste characteristics, and you would look at them and swear they could not be the same variety of potato. They were completely different physically and in the way they tasted.
The soil in Michigan alone after the glaciers melted, all that sand. Very different from Idaho.
Very much so. We were in New Zealand this year, and it was so similar to Idaho. New Zealand is bifurcated by the 45th parallel south, and Idaho is bifurcated by the 45th parallel north. It was like déjà vu—the topography of the land—and all the sheep crossing into the middle of the road. It was like being back in Idaho.
Could you say more about how American GI producers are, as you put it, at a competitive disadvantage when enforcing their rights abroad? Doesn’t the U.S. have some treaties binding other countries to respect our GIs?
It’s tricky. There are a limited range of countries that will allow potatoes to be imported anyway; for example, we still cannot sell potatoes to China, and Mexico is hit-and-miss in terms of maintaining market access. Even Canada is a challenge. During my time at the IPC, we were not able to really use treaty rights effectively, because we did not have good market access.
Even with the North American Free Trade Agreement and the United States-Mexico-Canada Agreement?
What happened with Mexico, the first shipments of Idaho® potatoes were only around 2021, against strong opposition from the National Confederation of Potato Producers of the Mexican Republic (CONPAPA). CONPAPA had successfully sued to block the importation of U.S. potatoes, and it took the Mexican Supreme Court to allow importation. Now potatoes are flowing into Mexico.
You had an interesting issue with Turkey, correct?
Yes, there’s a mountain in Turkey that is essentially named Idaho. And there was a producer in Turkey trying to register the name “Idaho” for potatoes, which we were able to stop. The IPC has obtained protection for IDAHO and GROWN IN IDAHO around the world, but not in Turkey, because the sales were not substantial there.
It does sometimes feel that we are stuck between two poles of thinking: (1) that a GI is a primarily European concept and (2) that free market competition is a primarily U.S. concept. But when you drill down into the agricultural landscape in the U.S., we have all of these regional agricultural marketing boards and regional certification marks that get lost in this whole conversation. Hypothetically speaking, if we had a more productive Congress, what would your ideal protection regime look like?
As with everything, you would need to strike a balance between competing rights holders that would create a system for a strong basis for asserting GI rights in foreign countries but that would not trample on the rights gained in the U.S. marketplace. I do not believe that there will ever be a free trade agreement negotiated with the European Union or the United Kingdom that would allow Kraft to sell Parmesan cheese under that name—that’s a step too far. But there should be a way to allow them to come up with a product name that would not hinder their marketing of goods, if they ever achieved market access.
Some of the trade agreements that the U.S. has entered into have required a “clawback” of semi-generic terms from branding discourse, e.g., “Champagne” in the TRIPS Agreement. So pre-treaty users are grandfathered in and can keep using the term, but new producers cannot. What is your feeling about these clawbacks?
It depends on the term and the impact. You have to at least be open to discussing what could resolve an issue on GI protection: Can the impact on producers be mitigated? Could you strike a balance? I do not think that in general the idea of trying to resurrect a term that has no marketing impact in a given location, i.e., that has become a generic term, is the way to go. The cheese area is the most complex area. On the alcohol side, with wines, they have come to an understanding of where everything is so they will be fine in a trade agreement. Other agricultural products must be evaluated on a case-by-case basis.
When you say mitigating the impact on producers, what would that mitigation or making these producers whole look like?
It has to be in consultation with the producers themselves. It is a very difficult uphill struggle to make farming work, to make agriculture work.
Is there a way that U.S. Food and Drug Administration standards of identity provisions could be leveraged to provide some increased protections? Even with gruyere, there are requirements about the types of holes and aging required to be marketed as gruyere in the U.S.
Possibly, but it takes us back to the collective action problems in Congress, and certain agricultural producers who would object.
What do you think is the future of agriculture?
Agriculture is coming into an exciting era of artificial intelligence, drones being used in agriculture, and CRISPR technology in genetics—all of which are changing the way food will be produced. It’s exciting and terrifying at the same time. You will see fewer hands producing food products, but you may also see higher quality because of these technologies. We need to remember that where there is money to be made, organized crime follows, and there is a lot of overlap of organized crime in the food fraud space. The consumer thinks they are getting one product, but they are getting a counterfeit food product. GIs can help deliver on consumer expectations.