The Law of Location: Reign of Terroir

What is 'terroir' other than a French word that defies literal translation? According to the Larousse French-English dictionary, 'terroir' means 'region.' [Terroir [Trans. 1]. (n.d.). Larousse French Dictionary Online. Retrieved Sept. 3, 2014.] The Larousse monolingual French dictionary, however, goes a little further. For Francophones, 'terroir' is defined as "[t]he totality of the lands of a region, considered from the point of view of their agricultural aptitudes and producing one or several typical products, for example, wine." [Terroir [Def. 2]. (n.d.). Larousse French Dictionary Online. Retrieved Sept. 3, 2014.]  This definition is a bit closer to the concept of terroir in the winemaking context.

The geographic origin of a wine has long been believed to impact its taste (“palate”) and aroma (“nose”). Factors such as climate, soil, and nearby vegetation leave their imprint on a grape to create a unique flavor profile. These factors in turn account for some of the noticeable differences in palate and nose among wines made from the same grape variety. For this reason, many consumers rely on designations of origin, or appellations, in choosing their wines. This is the essence of “terroir”—the idea that the holistic geophysical and ecological profile of a region influences the taste and other characteristics of the fruit grown there. Terroir is a source of pride, economic value, and contention among wine producers and consumers.

The notion of terroir existed before the French gave it a chic name. In the third century B.C., Theophrastus, a philosopher, botanist, and student of Aristotle, examined viticulture in The Causes of Plants. He ascribed to “chora,” a Greek word for “place,” a broader meaning encompassing environmental features. The Romans were hip to terroir, too. Pliny the Elder wrote about the Eugenia grape variety in Natural History circa 77 A.D. According to Pliny, Eugenia vines were

imported from the hills of Taormina to be grown only in the territory of Alba, as if transplanted elsewhere it at once degenerates: for in fact some vines have so strong an affection for certain localities that they leave all their reputation behind there and cannot be transplanted elsewhere in their full vigour.

[Pliny (1945). Natural History, with an English translation by H. Rackham, Vol. IV.) London: William Heinemann Ltd.] Basically, terroir is not a new idea, and the French can’t really take all the credit for it.

Is there any science to support the idea of terroir?

That soil composition and water supply can affect the flavor of a fruit is common sense to many, although the extent of that influence has been vigorously debated. Even assuming a strong correlation between terroir and fruit flavor, do these nuances survive vinification? Until recently, what science told us about terroir and wine was fairly limited. New peer-reviewed studies suggest, however, that the ancient Romans were right to make those Eugenia vines feel at home. For instance, in 2012, a group of scientists used proton nuclear magnetic resonance (also called “1H NMR”) metabolomics and chemometrics on must and wine samples from the three subregions of La Rioja to determine whether there were discernible differences in the grapes and wine. The analysis showed distinctions among the must and wine from these contiguous regions (this is kind of a big deal), with isopentanol and isobutanol compounds being the key distinguishing features. Isopentanol and isobutanol are alcohols that affect aroma and flavor.  Not surprisingly, scientists have also demonstrated through RNA sequencing that grape microbiomes (the bacterial and fungal structures that live on the surface of grapes) do in fact vary by region.  Whether and how much these variations influence flavor remains to be studied.

Legal Protection of Terroir

Terroirs are protected via the legal recognition of geographical indications, or appellations. France, Italy, Spain, Croatia, and Germany, for example, have developed highly sophisticated geographical indication systems, and the French are notoriously diligent in their enforcement of appellation laws. France has established more than 300 Appellations d'Origine Contrôlée (AOCs), as well as an alphabet soup of other designations, which are regulated by the Institut national de l'origine et de la qualité (INAO) within the Ministry of Agriculture. Italy has established more than 300 Denominazioni di Origine Controllata (DOCs) and other designations. The European Community also has a system of geographical indications. The legal history and current mechanics of these systems warrant their own post, but a few important things to remember about the current systems are:

• In the case of wine, some appellation systems regulate more than just labelling; they regulate planting, cultivation, pressing, and vinification as well.
• With multiple systems and regulatory bodies at play—especially in the E.U.—obtaining protection and remaining in compliance can be complicated.
• Not all countries afford appellations legal protection. To enlist the help of foreign governments in combating fraud, the E.U. has entered into a number of bilateral treaties dealing with wine.
• Geographical indications are currently a sticking point in the ongoing negotiations of the US-EU Transatlantic Trade and Investment Partnership (TTIP) free trade agreement. There is real economic value in some indications.

What many consumers are unaware of is the fact that the U.S., too, has a system of designation of origin. Our appellations are called American Viticultural Areas (AVAs). The law defines an AVA as “a delimited grape-growing region having distinguishing features.” [7 C.F.R. § 4.25(e)(1)(i).] Those features include climate, geology, soil, topography, and elevation. [7 C.F.R § 9.12(a)(3).] Regulations governing wine labeling and advertising, including the use of appellations, can be found in the Code of Federal Regulations, Subchapter A, Part 4. The Alcohol and Tobacco Tax and Trade Bureau (TTB) within the Department of the Treasury enforces the federal laws that regulate alcohol production, importation, wholesale, labeling, and advertising.

In addition to recognizing its own AVAs, the U.S. government recognizes geographical indications established by certain other countries. This recognition is rooted in the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), which entered into force on January 1, 1995.  The U.S. is also party to the Agreement between the United States and the European Community on Trade in Wine, which took effect with legislation enacted in 2006, and to the multilateral Agreement on Mutual Acceptance of Oenological Practices, Agreement on Requirements for Wine Labelling, and associated agreements.

Another critical component of the legal framework for geographical indications is Section 2(e)(2) of the Lanham Act, which lists the kinds of marks eligible for registration with the U.S. Patent and Trademark Office. The statute provides that "indications of regional origin" may be registered pursuant to Section 4 of the Act. [15 U.S.C. § 1052.] Geographical indications are protected under the Act as certification marks. For more information on certification marks, see the U.S. submission to the World Intellectual Property Organization (WIPO) regarding certification and collective marks formalities.

So what does this have to do with Rudy Kurniawan?

Rudy Kurniawan lied to a bunch of people to get a bunch of their money, but where does appellation fit into his story? In short, when Kurniawan placed forged labels boasting celebrated French AOCs on his concoctions, he represented to buyers that his wines were made from grapes grown in those appellations. U.S. regulations provide, however, that a foreign wine is entitled to a viticultural area appellation of origin only if:

(i) The appellation has been approved . . . by the appropriate foreign government;

(ii) Not less than 85 percent of the wine is derived from grapes grown within the boundaries of the viticultural area; [and]

(iii) . . . [I]t conforms to the requirements of the foreign laws and regulations governing the composition, method of production, and designation of wines available for consumption within the country of origin . . . .

[7 C.F.R. § 4.25(e)(3).] While we may never know the true origin of the grapes in each bottle of Kurniawan’s wine, we do know that these homemade mixtures did not “conform[] to the requirements of the foreign laws and regulations governing the composition, method of production, and designation of wines available for consumption within the country of origin.” In other words, there’s more to the story than mail and wire fraud.