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UPDATE

European Court of Justice says purely plant-based products can’t use dairy names

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By Jim Cornall+

14-Jun-2017
Last updated on 15-Jun-2017 at 11:41 GMT2017-06-15T11:41:47Z

The European Court of Justice says if it's not from an animal, it can't be called milk. And yogurt, cheese, or any other dairy-derived product names are protected, too. Pic: ©iStock/byheaven
The European Court of Justice says if it's not from an animal, it can't be called milk. And yogurt, cheese, or any other dairy-derived product names are protected, too. Pic: ©iStock/byheaven

The Court of Justice of the European Union in Luxembourg today announced purely plant-based products cannot, in principle, be marketed with designations such as ‘milk’, ‘cream’, ‘butter’, ‘cheese’ or ‘yogurt’, which are reserved by EU law for animal products.

The court says the same applies even if those designations are accompanied by clarifying or descriptive terms indicating the plant origin of the product concerned.

In Europe, dairy terms are protected under EU regulation 1308/2013 .

However, there is a list of exceptions.

Plant cheese isn’t cheese

The judgment comes after a case between Verband Sozialer Wettbewerb eV and German company TofuTown.com GmbH, which produces and distributes vegetarian and vegan foods.

It promotes and distributes purely plant-based products under the designations ‘Soyatoo Tofu butter’, ‘Plant cheese’, ‘Veggie Cheese’, and other similar designations.

The Verband Sozialer Wettbewerb is a German association, whose responsibilities include combatting unfair competition. It takes the view that promoting those products infringes the EU legislation on designations for milk and milk products.

Consequently, it brought an action against TofuTown for a prohibitory injunction before the Landgericht Trier (Regional Court, Trier, Germany).

However, TofuTown said its advertising does not infringe the relevant legislation. It argues that the way in which consumers understand those designations has changed considerably in recent years.

Moreover, it said it does not use designations such as butter, or cream on their own, but always in association with words referring to the plant origin of the products concerned, such as ‘tofu butter’ or ‘rice spray cream.’

The Landgericht asked the Court of Justice to interpret the relevant EU legislation.

Must come from an animal

In today’s judgment, the Court observes that, in principle, for the purposes of the marketing and advertising in question, the relevant legislation reserves the term ‘milk’ only for milk of animal origin.

In addition, except where expressly provided, that legislation reserves designations like cream, butter, cheese and yogurt solely for milk products, that is products derived from milk.

The Court concluded the designations set out above cannot be legally used to designate a purely plant-based product unless that product is mentioned on the list of exceptions, which is not the case for soya or tofu.

The Court noted the addition of descriptive or clarifying additions indicating the plant origin of the product concerned, such as those used by TofuTown, has no influence on that prohibition.

EDA: ‘A good day for European citizens’

Alexander Anton, secretary general of the European Dairy Association said the announcement was “a good day for dairy, a good day for European citizens and a good day for Europe.”

“The unique and natural blend of micro- and macronutrients of milk and dairy products cannot be matched by any plant-based products.

“Todays’ European Court of Justice ruling protects European consumers: dairy terms like ‘milk’, ‘butter’, ‘whey’, ‘cheese’ or ‘yogurt’ cannot be used by vegetable ersatz-products,” Anton said.

“Even in explaining the difference on the packaging, those plant-based products are not allowed to misuse our dairy terms for marketing their products.”

Vegetarian Union response

The European Vegetarian Union (EVU) said the verdict has little to do with consumer protection.

"The court has made it clear that the regulation under discussion is first and foremost motivated by economic concerns," an EVU statement said.

It added the court’s interpretation of the regulation contradicts consumer perception and everyday language.

The EVU said the decision comes as no surprise given the strict wording of the regulation.

"Plant-based alternatives to milk products have been on the market for many years," the statement said.

"As many of them have been developed and produced specifically to resemble the originals, they should be allowed to be marketed under similar sales denominations," it continued.

Dairy 'feeling threatened'

Dominika Piasecka, spokesperson for The Vegan Society, told DairyReporter, "The Court's ruling follows concerns over customer confusion - but realistically speaking, how likely is it that someone buys a carton of soya milk and think it's dairy milk?

"As customers are increasingly moving away from eating animals, the demand for vegan products is rapidly growing, with over half a million vegans in Great Britain now.

"There's no denying that the meat, dairy and egg industries are feeling threatened, and this court case is a desperate move to try to restrict the marketing of vegan products."

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