Authors: Ball, R. & Quirke, S.
Published in National Security Journal, Volume 1, Issue 1, October 2019
Spink acknowledges that there is no common definition of food fraud, or food product counterfeiting, because of the variety of deceptions that are used within the production and supply chain distribution of product, as well as the fact that different agencies – both regulatory and law enforcement – often place more emphasis on the intellectual property (IP) or trademark infringement component of the activity.10
In New Zealand, MBIE applies an IP-related definition, defining counterfeiting as the “manufacture of goods that bear a sign that is identical with, or similar to, a registered trademark.”11 Curiously for New Zealand, since being granted investigatory and enforcement powers in 2011, MBIE has never received, nor investigated, a complaint of counterfeiting or trademark infringement.12 The term replacement is also often used to describe reports of authentic material being replaced with another less expensive, substitute without the purchaser’s knowledge and for the seller’s economic gain.13 Only two pieces of New Zealand legislation specifically use the term ‘counterfeit product’ or ‘counterfeit goods’14 and neither makes any explicit reference to food-related fraud.
While no food-related statutes speak of counterfeit activities, they do identify offences involving deception” which fit with international definitions, by making specific reference to adulterating, tampering, misrepresenting, falsifying, removing, or failing to apply any and all necessary brand or material descriptions, for the purposes of “obtaining any material benefit.”15
Developing a typology provides insight into the nature of specific counterfeit actions and those who might conduct such activity. Taking existing criminology typology examples common within the crime science field, Spink et al have presented a broad typology of “product counterfeiters, counterfeiting and offender groups” (see Figure 1) in order to understand how such activity is “perceived, researched and categorized.”16
‘Counterfeit’ products are those where all elements of a product are fraudulently replicated, including packaging. ‘Adulterated’ products are those where one or more elements of the legitimate product is substituted or fraudulent. ‘Tampered’ describes products or packaging which are legitimate but have been used in a fraudulent way, as opposed to ‘Simulated’ fraud where unauthorised and/or copied product is designed to look like, but not exactly copy, the real product. ‘Over-Run’ products, according to Spink et al is when legitimate product is made in excess of production agreements, and ‘Theft’ describes actual product that is stolen and passed off as legitimately procured. The sale or distribution of legitimate goods outside of intended markets is known as ‘Diversion’.
Furthering this work, the authors have concentrated on the types of counterfeiting seen within the New Zealand primary products industry, and have mapped the known examples collected for this research and current legislative frameworks and definitions, against the counterfeiting criteria proposed by Spink et al to present a typology that is able to withstand the multiple definitions and numerous stakeholders – both public sector regulators and law enforcement