The Court of Justice of the European Union (ECJ) will soon decide on the issue of whether plant-based products may be labeled and promoted with product names intended for dairy products such as “Veggie-Cheese,” “Tofubutter” or the very common “Soy Milk” (ECJ, pending, Case C-422/16).

Facts of the Case

TofuTown.com GmbH, a German manufacturer and distributer of vegetarian/vegan milk substitutes, is promoting its plant-based products with product designations referring to traditional dairy products, such as “Soyatoo Tofubutter,” “Plant Cheese,” “Veggie-Cheese,” “Rice Spray Cream,” etc. The claimant, a German competition association, is challenging the use of these trade names for plant-based products, arguing that these trade names are reserved for products obtained from milking in accordance with Art. 78, Annex VII, Part III No 1 and No 2 of Regulation (EU) No 1308/2013 establishing a common organization of the markets in agricultural products.¹

The claimant argues that the use of trade names such as “Veggie-Cheese” or “Tofubutter” are permissible in light of current consumer understanding. In addition, the claimant notes that the terms are not used in isolation (e.g., “cream” or “cheese”), but are preceded by terms that reference the plant origin of the product (e.g., “Plant Cheese”).

The question of whether pure plant-based products may be labeled with designations reserved for dairy products of animal origin in conjunction with other clarifying or descriptive terms (such as “Tofubutter”) has not been decided by the superior courts. Therefore, Landgericht Trier (District Court of Trier), the court seized, referred the question to the ECJ.

Question Referred

In its decision of July 28, 2016, Case 7 HKO 20/16, the Landgericht Trier referred to the ECJ the question of whether foods may be labeled as “vegan cheese” or “tofu butter” if they do not contain animal milk.

Comments

One could argue that such labeling is prohibited under Regulation (EU) No 1308/2013 since product designations and sales descriptions such as “milk,” “cheese” or “cream” may only be used for the marketing of a product obtained from milking. On the other hand, one could also argue that the regulation does not prohibit the use of sales descriptions like “milk” when they are used in conjunction with additional explanatory information clarifying the plant origin of the product.

The ECJ held in a similar case that a so-called “butter spread” must not contain the word “butter” in its product name since its milk fat content is lower than the required 80% (ECJ, Judgment of the Court, October 18, 2012, Case C-37/11). The manufacturer of the “butter spread” was prohibited from using the word “butter” and had to rename its product.

Although segments of the food industry have a desire to promote vegetarian and vegan products using the product designations of established dairy products, this practice does not appear to be permissible under the current regulations. It may potentially be feasible, however, to identify the product as a “soy drink” instead of “soy milk,” and add clarifying information (if factually accurate) that it is “a vegan alternative to animal milk.”

Either way, the decision of the ECJ, which we expect near the end of 2017, will have a major impact on the labeling and advertising not only of vegetarian or vegan “dairy products,” but also of vegetarian and vegan “meat products” such as “tofu sausages” or “vegetarian salami.”