Just last Friday, the Court of Justice of the European Union (CJEU) ruled a groundbreaking judgement regarding the designation of vegan and vegetarian meat alternatives, and barely a week later: the new guidelines for vegan and vegetarian products that are similar to foods of animal origin were published in the Federal Law Gazette of Germany.
During the last debate on the reform of the Common Agricultural Policy (CAP) in 2020, the European Parliament rejected an amendment that would have provided meat names the same protection as names for dairy products.
Nevertheless, France issued a corresponding decree in 2022, which was amended again at the beginning of 2024. In this decree, names such as "steak", "schnitzel" or "sausage" for vegan/vegetarian products that use such special terms for meat, sausage or fish products are expressly prohibited. The association Protéins France, the European Vegetarian Union (EVU) and other institutions filed a lawsuit.
The CJEU ruling of October 4 – C-438/23 – concerns the question of whether the French decree from 2022 is in line with the Food Information Regulation (EU) 1169/2011 (short: FIC Regulation), which harmonizes the rules on food labeling within the EU. In concrete terms, this means whether France can legally prohibit the use of certain names for plant-based products, in particular those that are usually used for animal foods.
Legal names allowed, bans not!
According to the decision, member states can set "legal names", but may not "generally" prohibit the use of "common or descriptive names" for plant-based products, as France has provided for in the decree.
The CJEU justifies this by stating that it is indeed a permissible and legitimate aim of the member states to regulate “legal names” in order to establish the connection between a specific expression and a food. However, a regulation that is limited to prohibiting the use of certain terms to describe foods with specific properties (composition, etc.) is not equivalent to this possibility. Why? In contrast to a ban on the use of certain terms, foods for which a “legal name” is binding must meet certain requirements in order to be allowed to be described with corresponding terms at all.
If a member state has introduced a legal name, it may not prevent the manufacturers of plant-based foods from using common or descriptive names to correctly label the products by means of a general and abstract ban.
Does Annex VI of the FIC cover vegan meat alternatives?
The parties also argued about whether the regulation for products imitating others in Annex VI of the FIC Regulation also applies to vegan meat substitute products.
The regulation in Annex VI is to be read in the broader context of the FIC Regulation, namely Article 7 paragraph 1 letter d. This sets out that the use of the name of a foodstuff which suggests the presence of an ingredient, which is normally contained in the foodstuff (meat), but which has actually been replaced by another ingredient (vegetable protein) is in principal misleading and therefore prohibited.
In this context, Annex VI FIC Regulation provides a solution whereby the name in question can still be used even though the expected ingredient has been replaced. The solution is to add an indication to the name which clarifies the substitute ingredient. For example: even if the name "sausage" as such suggests the presence of meat, the term "soy sausage" could explain that meat has been replaced by vegetable, namely soy, proteins in this product.
As the Advocate General makes clear in her opinion, the applicability of the provision in Annex VI to the replacement of meat with vegetable proteins also follows from the legislative history of the act. According to this, Parliament in the decision-making process had proposed labelling such products as "imitation food", while this was rejected by the Council. For effective consumer protection, it was proposed that the specific indication of the substitute ingredient be given in addition to the name of the food. In the final version, the current rule in Annex VI FIC Regulation was reached, according to which the indication of the substitute ingredient should be placed in close proximity to the name of the product and in a certain font size. In this respect, the product name is to be understood in the sense of the name of the food according to the FIC Regulation (see CJEU judgment of December 1, 2022 - C-595/21).
In this respect, the answer is: Yes, Annex VI of the FIC Regulation also applies to vegan meat alternatives. The regulation is comprehensive and covers all foods that suggest that a certain ingredient is present but has been replaced by another ingredient. In this respect, the French regulation, which specifies how much vegetable protein a food may contain in order to be able to bear certain common or descriptive names such as "sausage" or "steak", contradicts the uniformity of EU law. This is, because it effectively regulates the use of these terms without it being an official legal name. However, since names for substitute ingredients are uniformly regulated at EU level, an individual member state is not allowed to make its own rules on this.
Rebuttable presumption when complying with the FIC Regulation
In this regard, the CJEU states that Union law establishes a rebuttable presumption.
It is presumed that information that complies with the FIC Regulation adequately protects consumers.
This also applies to the regulation of substitute ingredients in Annex VI No. 4 FIC Regulation. This means that even if a component or ingredient is completely replaced and this is indicated in accordance with the requirements, these foods may be referred to using a common or descriptive name that includes certain terms such as "sausage" or "steak".
According to the CJEU's opinion, the presumption can be refuted if a national authority is of the justified opinion that the overall presentation of the food would mislead consumers in the individual case. For example, if the font size requirement for the substitute ingredient is not met or if the overall presentation gives the impression that the product (also) contains animal components, for example by depicting an animal on the packaging.
The provisions of the Food Information Regulation already comprehensively regulate consumer protection with regard to possible deception through the use of names from the meat and fish industry for products that use vegetable proteins instead of animal proteins.
Let's take a look ahead!
France is now obliged to change their national law. The member state could now decide in the next step to introduce legal names for certain meat products, such as steak, schnitzel, sausage, etc.
The protection of these names could look similar to that for dairy products.
As known from the CJEU's decision of June 14, 2017 in the TofuTown case – C-422/16 – terms such as "tofu butter" or "veggie cheese" or "plant cheese" violate the protected names for dairy products.
On the other hand, in the case law in Germany and other member states, terms such as "plant-based yoghurt variation" (Court of Justice of Hertogenbosch (NL), judgment of December 19, 2017) or "vegan cheese alternative" (Higher Regional Court of Celle, judgment of January 23, 2018 - 15 O 377/17) were deemed permissible.
The courts justify this in a similar way. In the Dutch case, it was emphasized that the word combination used is not used as a name, but as a description for the soy product. The name emphasizes that the product is an alternative to the animal milk product yoghurt.
Likewise, the Higher Regional Court of Celle made it clear that the labelling of a product as “cheese alternative” cannot be equated with an inadmissible designation as "cheese". Because by presenting the product as an “alternative”, it is positioned in relation to the dairy product “cheese” and it is made sufficiently clear that it is not cheese, but rather an alternative to it.
Presumably, it can be expected that meat alternatives will soon be labelled in this way, similar to dairy products, for example as “sausage alternative made from soy” or that the anti-advertising trend will continue here too. Then again it might be time to say: “Don’t call it schnitzel”!
And what impact will the ruling have in Germany?
It is debated intensively about names for meat alternatives.
The German guidelines for vegan and vegetarian products from 2018 still differentiate when it comes to meat products: "Vegetarian schnitzel based on milk protein" or "vegan soy sausages" are considered common and therefore permissible, while "vegetarian steak based on pea protein" or the designation "vegetarian salami based on soy" are classified as uncommon.
The new guidelines continue to differentiate between common and uncommon terms. However, the designation "vegan steak" should actually be admissible, but with the restriction that they show “extensive sensory resemblance” to the food of animal origin in question, especially in appearance, texture and mouthfeel. The guidelines also provide vague information about what is meant by "extensive sensory resemblance": This means that the vegan alternatives have to resemble the meat product almost comprisingly.
Practice will show to what extent the new guidelines correspond to the CJEU ruling against which they must be measured. The benchmark will be the question: Are corresponding alternative products really "imitations" in terms of taste, appearance, texture and mouthfeel? And are these the criteria to be used for classification as an "imitation"?
According to the guidelines, if there is no "real" imitation of a steak, it should not be described as such. In individual cases, this could be misleading, in which case the CJEU also considers it justified that the use of terms related to meat is prohibited.
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