The district commercial judge interpreted the product’s name as breaching EU law, and on-pack messages that said the product was made from plant-based ingredients did not change the fact that it was anti-competitive.
Andreas Klein, spokesperson for the court said it was not authorised to reveal the name of the company, but German media have reported it is Wiesbaum-based manufacturer TofuTown, and according to Die Welt it intends to appeal the court’s ruling.
Tofutown did not respond to questions by FoodNavigator.
The court gave no suggestion as to what manufacturers could call cheese substitutes, said Klein, adding that the ruling applies only to the manufacturer in question and is applicable across Germany.
How successful an appeal would be is questionable, as EU regulation 1308/2013 protects the use of dairy terms. A spokesperson for the European Commission said: “In a nutshell, the designation ‘cheese’ cannot be used for a product that is not genuinely made of animals' milk. A vegan product must be marketed under a name that does not build on the reputation of milk products and mislead consumers.”
This is also reinforced at a national level – in Germany, the Käseverordnung explicitly states what can and cannot be called cheese.
'Consumers don't look for cheese substitutes - they look for vegan cheese'
But one UK-based manufacturer told us vegan cheese producers are at a disadvantage if they are not allowed to call their products cheese – especially in the age of SEO-driven online grocery shopping where most people search for ‘vegan cheese’ and not ‘cheese alternative’. They are therefore less likely to find what they are looking for, putting them and manufacturers at a loss.
But Malte Clasen, managing director of Wilmersburger which produces cheese alternatives, told us thought the law is reasonable. “We don't want to confuse our consumers, so we don't want to even imply that we offer products based on animal products. Therefore we recommend the declaration as ‘Käse-Alternative’, which translates to ‘alternative to cheese’. This makes it obvious that is not cheese.
“Our formal declaration with respect to the EU regulation [ 1169/2011] is ‘Sandwich topping with vegetable oil’. This sounds strange, but that's how it has to be. In the end, consumers go by the brand name. Wilmersburger is widely known, so we don't need any category name.”
Plant v animal
But when consumers' point of reference for a product is a protected name - even if they are specifically looking for a plant-based substitute - the terminology battle can heat up between producers of plant-based alternatives to traditional animal-based staples.
Last year a Belgian court upheld a complaint filed by the Belgian Confederation of the Dairy Industry (BCZ) against Alpro and its use of the terms ‘yoghurt variant’, 'variation on dairy' and 'plant-based variation
on dairy'. It approved the term 'plant-based alternative to dairy'. Alpro, a business segment of US dairy giant Dean Foods, had to adapt its website and packaging accordingly.
Alpro took a similar line to Wilmersberger saying it doesn't want to pretend its products are dairy-based. "On the contrary! Alpro stands for plant-based food and wishes to distinguish itself from dairy products," it said in a statement following the court case.
Meanwhile in the US plant-based food manufacturer Hampton Creek has seen numerous lawsuits brought against it - including by industry giant Unilever although it later dropped the case amid a wave of negative publicity - for its egg-free Just Mayo made from canola oil and yellow pea protein. US law stipulates that mayonnaise contains “one or more… egg yolk-containing ingredients".
But according to German website Lebensmittel Klarheit (Food Clarity) which is run by the Federal Ministry of Food and Agriculture, vegan and vegetarian food manufacturers can find themselves operating in somewhat of a grey area.
Terms like sausage or mortadella are not defined by food regulations and are therefore not protected, it says. While they do appear in the German Food Manual for meat and meat products, this is not legally binding. It urges manufacturers to clearly label their products as vegetarian or vegan but adds in the case of consumer confusion, only a court can decide.
“In our view, the terms described in the guidelines should be [reserved] but for the corresponding meat products. Vegetarian products differ so strongly that they should also carry a special name for this,” says Lebensmittel Klarheit.
But some German meat manufacturers are hedging their bets rather than heading to the courts. The country's largest poultry producer has launched its own range of vegetarian mortadella slices while processed meat giant Rügenwalder Mühle wants at least 30% of the company’s sales to come from its vegetarian range by 2019.