Animal-Based VS Plant-Based Products – A Legal Analysis

I. Introduction

Concerns in the European Community were raised by the European Parliament’s (EU) decision of 23 October 2020, rejecting the European breeders’ demand for a ban on the use of the terms “burger”, “steak” and “sausage” in products which consist exclusively of plant ingredients. This decision could be described as unpredictable given the position of the Court of Justice of the European Union (CJEU) on a similar issue in Case 422/16 TofuTown[i].

Before reviewing the recent decision of the European Parliament, it would be useful to briefly analyze the position of the CJEU in the Case 422/16 TofuTown[ii].

II) Decision in the Case 422/16 TofuTown on the Use of Dairy Names with Purely Plant-based Products

The CJEU in a reference for a preliminary ruling of the German tier regional court of Trier, had to decide whether the practice of a company using the term “milk” and other similar terms referring to dairy products, such as “cream”, “butter”, “cheese”, in order to name purely plant products is allowed[iii]. The CJEU approached this question by invoking Article 78 and the relevant Annexes to Regulation 1308/2013[iv].

Pursuant to Part III of Annex VII to the Regulation 1308/2013, “milk” means exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom. Similarly, “dairy products” means products derived exclusively from milk and may be added to substances necessary for their manufacture, provided that such substances are not used for the purpose of wholly or partially replacing any of the constituents of milk.

The CJEU, applying a literal interpretation of the Regulation 1308/2013, ruled that a company may not label purely plant products in their marketing or advertising as “milk”, “cream”, “butter”, “cheese” “Yogurt”, even if those terms are expanded upon by clarifying or descriptive terms indicating the plant-based origin of the products concerned[v]. Special reference was also made to the Decision 2010/791 of the European Commission, which established a list of certain products of plant origin which may exceptionally include in their names, words relating to milk or milk products[vi]. This list includes names such as “coconut milk”, “horse-radish cream”, “cocoa butter”. Therefore, based on the CJEU decision, TofuTown was banned from using names such as “tofu butter” and “veggie cheese” and “vegetable cheese” to describe its plant products.

Based on this approach, the term “soya milk” cannot be used, as soy is a purely plant product, while milk based on the regulation, can only be used for products made from animals. Respectively, the use of terms such as “almond milk” and “oat milk” are not permitted. Although almond milk and oat milk are not on the list of exceptions, they tend to be marketed as “almond drink” and “oat drink”[vii] as the use of term “drink” instead of the term “milk” is allowed.

III) EU rejects proposal to ban labeling plant-based meals as veggie ‘burgers’

At the initiative of the European Farmers’ Union, in October 2020 a campaign called “this is not a steak” was launched in order to achieve a European level ban on the use of the terms “burger”, “steak” and “sausage” when they consist of vegetable ingredients. A typical example is the “veggie burger” or “veggie sausages”, which are considered as alternatives to meat. The main arguments of farmers are the confusion that can be caused by the use of such names to consumers who want to buy animal-based burgers, steaks, or sausages, as well as the economic damage to the agricultural sector. The initiative and expediency for this campaign stems from the significant increase in the consumption of products that are considered as alternatives to meat and dairy products, a fact of particular concern for professionals involved in the livestock sector. However, the European Parliament rejected this position, voting against the proposal to ban the naming of plant products with names such as “burger”, “steak” and “sausage”.

IV) Critical Review

It should be noted that the finding in the judgment of the CJEU in the referred question and the outcome in the recent decision of the European Parliament are conflicting, despite the fact that similar issues are raised in both cases. In particular, the CJEU had the obligation to formulate its judgment by applying the requirements of Regulation 1308/2013 to the facts that framed the reference for a preliminary ruling. The wording of both Article 78 and Part III of Annex VII to the above Regulation is clear. Α different approach from the one adopted would be tantamount to judicial activism as the Regulation 1308/2013 is the political will of the EU Member States on how they want to regulate certain issues in a particular sector of the economy. The ruling of the CJEU Union on the referred question is therefore justified.

On the contrary, the decision of the European Parliament can be characterized as incompatible with the previous EU policy on the common agricultural policy, taking into account the Regulation 1308/2013. The decision created a disparity in the way certain products are regulated in the same sector of the economy, the agricultural sector.

Therefore, taking into account, inter alia, the changes in the dietary habits of European consumers the EU should act immediately at institutional level in order to eliminate the current situation of disparity. In particular, what is proposed is the extension of the Decision 2010/791[viii] by including more products, in order to allow the use of terms such as “soya milk”, “almond milk”, “soy yoghurt”, “tofu butter”, ” rice cream “, in order to comply with the recent decision of the European Parliament. Alternatively, it is proposed to adopt a new piece of legislation through which the use of the above-mentioned descriptions will be regulated uniformly and comprehensively for both cases analyzed. It seems that the debate on the permissibility of the use or not of the above-mentioned names is not yet over.

[i] C-422/16,Verband Sozialer Wettbewerb eV v. GmbH (2017) ECLI: EU: C: 2017: 458.

[ii] C-422/16,Verband Sozialer Wettbewerb eV v. GmbH (2017) ECLI: EU: C: 2017: 458.

[iii] C-422/16,Verband Sozialer Wettbewerb eV v. GmbH (2017) ECLI: EU: C: 2017: 458, para 20.

[iv] Regulation (EU) no. Regulation (EC) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organization of the market in agricultural products and repealing Regulations (EEC) No 2454/93 (EEC) No 922/72 (EC) No 234/79, 1037/2001 and (EC) no. Council Regulation (EC) No 1234/2007 (2013) OJ L 347.

[v] C-422/16,Verband Sozialer Wettbewerb eV v. GmbH (2017) ECLI: EU: C: 2017: 458.

[vi] C-422/16,Verband Sozialer Wettbewerb eV v. GmbH (2017) ECLI: EU: C: 2017: 458, paras 9, 10 and 11.

[vii] B. Bolton, ‘Dairy’s Monopoly on Words: The Historical Context and Implications of the TofuTown Decision’ (2017) 12 Eur Food & Feed L Rev 422.

[viii] 2010/791/EU: Commission Decision of 20 December 2010 listing the products referred to in the second subparagraph of point III(1) of Annex XII to Council Regulation (EC) No 1234/2007 (notified under document C(2010) 8434), OJ L 336.