Plant-based products: stay (once and for all) away from dairy names
On 14 June 2017, the European Court of Justice said that dairy terms – such as milk, yoghurt, cream and cheese – cannot be used to describe plant-based products.
Therefore, food businesses marketing plant-based products in the EU with dairy language – for example, ‘tofu butter’ – could face legal action.
Rules for using dairy terms
The use of dairy terms has been regulated for a long time at the EU level. The relevant rules are now embedded in Regulation 1308/2013 regarding common market organisation for agricultural products (CMO Regulation).
In the case at hand (Verband Sozialer Wettbewerb eV vs TofuTown), the European Court of Justice decided that purely plant-based products cannot be marketed using dairy terminology, even if they are followed by an explanation outlining the plant origin of the product. This is because the CMO Regulation reserves these terms exclusively for animal products.
Exceptions to the rule
The CMO Regulation does allow certain exceptions, however, which appear in a list compiled by the European Commission.
For example, dairy-related names can be used for some plant-based products where the exact nature of the product is clear from traditional usage (eg cocoa butter) and/or when terms are used to describe a quality of the product (eg creamy).
The European Commission’s list was adopted in 2010 (Commission Decision 2010/791). It is based on suggestions from member states about products that traditionally bear a name normally reserved for dairy products.
Lost in translation
Because of the way that the list was put together, not all products are translated into all languages.
The European Court of Justice ruled that translating names included in the list is not authorised. For example, if ‘crème de riz’ is included in the list – translating it into ‘rice cream’ would not be authorised.
By doing so, the court went beyond an interpretation delivered by the Belgian Court of Appeal on 10 March 2015.
The Belgian court assessed whether a Dutch translation of the term ‘lait d’amande’ presented a risk of misleading consumers – and concluded that it did not. As a consequence, the court authorised the use of translations, as long as consumers were not misled.
In addition, the European Court of Justice’s ruling creates a new interpretation issue. The reasoning of the court was adopted despite recital 3 of the Commission Decision 2010/791, which states that the names of products included in the list should be usable in all member states – provided they comply with EU legislation on food information to consumers.
This therefore raises the question whether the use of such names – untranslated – in other member states would be compliant with Regulation 1169/2011 on food information to consumers.
Likelihood of misleading consumers
Plant-based products offering alternatives to milk/milk products have become increasingly popular among consumers precisely because they do not contain milk.
Therefore, one of the criteria for assessing the legality of the names under discussion could have been the likelihood of misleading consumers.
However, the European Court of Justice ruling only mentions that adding explanatory terms to the names does not exclude the likelihood of misleading the consumers.
Consequently, it appears that the European judgment leaves little room for interpretation as to the scope of exceptions. Food businesses may therefore want to reconsider the names they use to sell their products in the EU to avoid any legal action for breaching EU rules.
The judgment has already caused a wave of media criticism across the EU as it seems to go beyond the letter of Regulation 1308/2013.
Find out more
The judgment can be found here.
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AudeMahyAttorney at law Counsel
Aude Mahy is of counsel to our Brussels office. She is a member of the Loyens & Loeff Litigation & Risk Management Practice Group in Belgium and heads the Benelux Food & Beverages Team.T: +32 2 743 43 25 M: +32 476 94 09 52 E: email@example.com