Emmentaler Switzerland Prevails Before the Federal Administrative Court in Legal Dispute over Cheese Holes

Emmentaler Switzerland, the official producers’ association for Emmentaler cheese, has successfully prevailed before the Swiss Federal Administrative Court in a pivotal legal dispute against the Federal Office for Agriculture (FOAG), concerning the preservation of the iconic Emmentaler holes by amending the product specifications. The court's decision – which remained unchallenged by the FOAG – addresses the critical issue of how tradition and innovation can coexist within the framework of Protected Designations of Origin (PDO). 

Background of the case:

In Switzerland, the name of the Emmentaler cheese is protected as a PDO, meaning that its production must comply with strict criteria relating to origin, production, and quality, as outlined in the FOAG-and Supreme Court-approved product specification. This specification also defines which additives are permitted in the production of Emmentaler PDO. Traditionally, the only additives permitted were rennet, lactic acid and propionic acid bacteria cultures, salt and drinking water. However, in recent years, producers have faced challenges in achieving the characteristic holes in Emmentaler cheese. The stricter hygiene standards for milk production has reduced the traditional presence of natural hay particles that once entered the milk during manual milking over open buckets. According to recent scientific research, these hay particles play an important role in the development of the cheese holes.

To address this issue, Emmentaler Switzerland proposed expanding the list of permitted additives to include so-called natural hay powder for use in the production of Emmentaler PDO. The goal was to compensate for the absence of natural hay particles by adding a natural hay powder, and as a result, restore consistent hole formation. Agroscope, the Swiss federal center of expertise for agricultural research, supported this proposal following successful trials. 

The FOAG, whose approval is required for amendments to PDO specifications, rejected Emmentaler Switzerland's proposal. It argued that allowing hole formation powder as an additive would lead to an impermissible standardisation and industrialisation of the production process of Emmentaler PDO, thereby unlawfully compromising the traditional character of the latter. 

Emmentaler Switzerland appealed this decision to the Federal Administrative Court. The court – tasked with solving the dilemma of preserving the traditional character of a PDO on the one hand, while supporting technological advancements on the other hand – decided the case in favor of Emmentaler Switzerland. In summary, it recognized that the iconic holes are a defining characteristic of Emmentaler PDO and held that there is a public interest in preserving this feature. Although hole formation powder is not itself a traditional ingredient, the court reasoned that its use serves to restore a traditional feature – the holes – that has been unintentionally diminished due to technological developments in milk production. An amendment of the product specification to include hole formation powder was therefore proportionate and justified. 
The court's decision illustrates that innovation and tradition can coexist within the PDO framework. If technological developments impact the traditional characteristics of a PDO, a carefully considered adjustment of the PDO specifications may be permitted, or even required, to ensure the long-term preservation and sustainability of the designation.

Emmentaler Switzerland was represented by Lenz & Staehelin. The team comprised Jürg Simon and Simona Baselgia (both IP).