Unit 9 - Kinky Kamenbert Problem

You represent Organic & Natural Foods, Inc., a Delaware corporation (“Organic”), which is in the health food business. It produces, among other things, a delicious nature cheese from raw, non-pasteurized milk, which it has branded as Kinky Kamenbert cheese (“KK”) to appeal to youthful consumers. It now desires to export KK to Europe, but has word of the following. The Germans in taste-testings so love KK, that the German Dairy Association as a prophylactic matter is planning to bring a health complaint against the import of all cheese made from raw milk and to lobby the German government as a matter of public health law permanently to ban the import of any such cheeses. The nominal public health basis of the claim is that, due to the incipient danger of listeriosis and similar diseases associated with consumption of any dairy products made from non-pasteurized milk, there is always some residual danger that people like pregnant women, the elderly and those with generally compromised immune systems may become seriously ill after consuming the dairy products made from non-pasteurized milk. Any such ban would coincidentally lead to the exclusion of KK. So the word is this is about protectionism, but the problem is that evidence is scarce and it is possible arguably to articulate a colorable public health ground for such measures.

Separately, the French Camembert Cheese Farmers’ Association is planning to bring a complaint that KK will be confused with their genuine camembert cheese, thus consumers will be effectively defrauded if they mistakenly buy KK thinking it to be a French cheese.

Your client has asked for your analysis and advice concerning the German and French claims, because they do not desire to expend considerable resources preparing to export KK to Europe, only to have the project fail on account of the two complaints.

Write an advisory letter to your client explaining the applicable principles in trade law terms and how you would advise them to proceed.