EU COURT CONFIRMS “SOY MILK” CANNOT BE USED IN LABELS

In a recent case, the Court of Justice of the EU ruled that traditional dairy terms such as ‘milk’, ‘cream’, ‘butter’, ‘cheese’ or ‘yoghurt’ cannot be used in purely plant-based products, even if accompanied by clarifying terms indicating their plant origin. This means, in practice, that sales names such as “soy milk” or “cheese tofu” are banned. As an exception, terms such as “coconut milk”, “cocoa butter” or “cream sherry”, which are expressly included in a EU-wide positive list are allowed.

The German company TofuTown produces purely plant-based products such as ‘Soyatoo Tofu butter’, ‘Plant cheese’, ‘Veggie Cheese’, ‘Cream’ and other similar designations. A German association brought an action against the firm for a prohibitory injunction.

As the law stands (Regulation No 1308/2013), term ‘milk’ means ‘exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom’. As an exception, this principle is not applicable to the description of products the exact nature of which is known because of traditional use and/or when the designations are clearly used to describe a characteristic quality of the product.

These exceptions need to be included in a EU-wide list of names (Decision 2010/791).

The Court stated that the term ‘milk’ cannot, in principle, be lawfully used to designate a purely plant-based product, since milk is, within the meaning of that provision, ‘an animal product’.[1]

Further, the Court stated that clarifying or descriptive terms indicating the plant-based origin of the product concerned, such as soya or tofu “do not fall within the terms which may be used with the designation ‘milk,’ (…) since the alterations to the composition of milk that the additional words may designate under that provision (…) does not include a total replacement of milk by a purely plant-based product”.

The same applies for a purely plant-based product, of such product does not, by definition, contain any constituents of milk.

In an earlier case, the Court of Justice held that EU law precluded the use of the description ‘cheese’ for products in which the milk fat has been replaced by vegetable fat, even if that description is complemented by additional descriptive material (cf. Judgment of 16 December 1999, UDL, C‑101/98, EU:C:1999:615, paragraphs 20 to 22).

Comment

The Court also advocated for an strict language-based interpretation of the list of exceptions, stating it is clear that the names of the products at issue are listed according to their traditional use in the various languages of the Union. Therefore, the fact that, for example, ‘crème de riz’ in French was included does not mean that its English translation (‘rice cream’) also meets the criteria to be used lawfully in another EU coutry.

However, Recital 3 of Decision 2010/791 laying down the list explicitly states that
it “should include the names of the relevant products according to their traditional use in the various languages of the Union, in order to render these names usable in all the Member States” provided they comply with general labeling rules.

This, in our view, opens the door to using translation of terms from other Member States, provided that the manufacturer can prove that the exact nature of the product is known because of traditional use and/or when the designations are clearly used to describe a characteristic quality of the product.

Ways ahead

Manufacturers of plant-based products have several alternatives after the ruling.

First, Article 78(3) of Regulation No 1308/2013 empowers the Commission to adopt derogations “in order to satisfy demonstrated needs resulting from evolving consumer demand, technical progress or the need for product innovation”. Until today, such an act has not been adopted, even though, as the defendant claimed, “the way in which consumers understand those designations has changed massively in recent years”.

Second, amendment to the list of exceptions laid down in Decision 2010/791 is still possible, and including new names satisfying the requirement should be considered.

Finally, in our view, the ruling does not preclude statements such as “plant based alternative to yogurt/milk", where it could be argued that in the given context, “yoghurt/milk” is not used as a designation for the product and where it is by no means suggested that the product is a milk product. 

Judgment of the Court (Seventh Chamber) of 14 June 2017 in Case C‑422/16, Verband Sozialer Wettbewerb eV v TofuTown.com GmbH (not published yet)

 [1]        Cf. Annex VII, Part III, point 4 to Regulation No 1308/2013, which provides that, as regards milk, the animal species from which the milk originates are to be stated, if it is not bovine, and Article 78(5) of that regulation, which empowers the Commission to adopt delegated acts to specify the milk products in respect of which the animal species from which the milk originates is to be stated, if it is not bovine.