On 23 October 2020 the European Parliament voted on amendments to the CMO Regulation (1308/2013). Ultimately the lawmakers decided not to ban the use of names alluding to meat in relation to plant substitutes. It will still be possible to buy vegetarian sausage in stores and order veggie burgers in restaurants. But makers of ersatz dairy products may face a tougher time.
How has it been?
Two years ago we wrote about the toughening of the rules on naming of vegetarian and vegan foods. As a result of a strict interpretation by the Court of Justice of the European Union, terms such as “milk” and names of various dairy products (such as “cream” and “butter”) should be used only for products of animal origin (C-422/16, Verband Sozialer Wettbewerb eV v TofuTown.com GmbH). As a result of that ruling, producers were forced to replace the customary names they were using, such as “soy milk” or even “peanut butter,” with descriptive names like “soy beverage” or “peanut paste.” This complied with the ruling by the Court of Justice, but in practice was confusing to the average consumer, who had been accustomed to this nomenclature for years.
The next phase is approaching in the restrictive approach to vegetarian foods, particularly with respect to the marketing of “milk analogues.” On 23 October 2020 the European Parliament voted on amendments to the Common Market Organisation Regulation (1308/2013), which is the source of these definitions. The lawmakers decided that the existing restrictions are inadequate, and additional mechanisms should be adopted to help consumers distinguish products of animal origin from their plant substitutes. As a result, producers of vegan foods will also have to cease referring to their products by phrases such as “cream flavour” or “yogurt type.” The legislative process at the EU level is not over yet, but the position of the European Parliament is now known.
The vote also covered proposed changes affecting products whose names allude to meat. But in this case, the European Parliament did not accept the proposed changes. Producers of plant analogues of meat will still be able to refer to their products as “vegan steaks,” “vegetarian sausages” or “veggie burgers,” so long as the names comply with the rules of the Food Information Regulation (1169/2011) on the naming of products, particularly the ban on misleading consumers. This assessment is made in relation to individual products, taking into account the overall information provided to the consumer on the label of the products as well as the associated marketing materials.
However, the judgment by the Court of Justice in TofuTown provided for certain exceptions, which remain in force. There the court pointed out that the ban with respect to non-dairy products “shall not apply to the designation of products the exact nature of which is clear from traditional usage and/or when the designations are clearly used to describe a characteristic quality of the product.” This reservation is set forth in Annex VII, Part III, par. 5 of Regulation 1308/2013, and in this respect will remain unchanged.
The list of products not subject to the rules established by the Court of Justice and the relevant provisions of Regulation 1308/2013 is set forth in an annex to Commission Decision 2010/791/EU. It was on this basis that, for example, the UK did not have to abandon the names “peanut butter” and “ice cream.” But this does not mean that it is permissible to use the faithful Polish translation of “peanut butter,” masło orzechowe. The exceptions were established by the Commission separately for each country which filed an application in this respect. A good example is coconut milk, which appears on the list numerous times, in various languages, such as lait de coco (France), Kokosmilch (Germany) and kokosové mlieko (Slovakia).
In this respect, Poland finds itself in a fairly disadvantageous situation, as this list includes only one item for the country, ser jabłeczny (“apple cheese”). In fact Poland requested that the Commission include in the list the names of other items manufactured by Polish producers, such as mleko kokosowe (cocoa milk), śmietanka kokosowa (coconut cream), masło orzechowe (peanut butter), masło migdałowe (almond butter), masło kakaowe (cocoa butter) and mleko migdałowe (almond milk), but this application was denied. The Commission found that Poland had failed to demonstrate that these products had been present on the Polish market for at least 30 years (which would show a tradition of selling these products). That is the period required for a finding that the characteristics of these products are well enough known to the average consumer that the use of such names will not mislead consumers as to the characteristics of the products they are buying, but will allow them to make informed choices.
There are doubts whether in the name of strict interpretation of the rules governing the names of products, particularly dairy products, the situation may arise where consumers will not be properly informed of the characteristics of the products they are buying. Producers will have to create lengthy descriptive names to identify products, because even references to a flavour or type of a dairy product will no longer be acceptable for vegan products.
The main aim of including provisions in Regulation 1308/2013 involving the names of products, such as dairy products, was to protect consumers against confusion, particularly from being misled by fake products. But under the current economic, cultural and social conditions, it is hard to accept that, for example, an educated consumer buying “creamy tofu” would rationally expect the tofu to contain cream, particularly as such products are usually targeted to consumers with a keen awareness of the market, paying close attention to the labels listing the ingredients of the products.
Joanna Krakowiak, attorney-at-law, Life Science & Regulatory practice, M&A and Corporate practice, Wardyński & Partners
Paulina Wojtkowska, Environment practice, Wardyński & Partners