On 14 June 2017, the European Court of Justice gave a very strict interpretation of the rules laying down the conditions for the use of designations reserved to milk and milk products (‘milk’, ‘yoghurt’, ‘cream’, ‘cheese’, …). The Court indeed decided that it is in all circumstances prohibited to use dairy names in association with plant-based products, unless those names are included – in the same language – in a list compiled by the European Commission upon request of a Member State. According to the Court of Justice, the prohibition applies even if there is no risk of misleading the consumer.

Strictly prohibited unless on the list of exceptions

Food business operators selling plant-based products in the EU as ‘tofu butter’ or accompanied by other terms like ‘milk’ or ‘cheese’ may be facing potential legal actions after the EU Court of Justice ruled that only products containing milk and milk products of animal origin can be marketed with these terms. The use of dairy terms has been regulated for a long time at EU level. The relevant rules are now embedded in Regulation 1308/2013 on common market organization in agricultural products (CMO Regulation).

In the case at hand, involving the German association Verband Sozialer Wettbewerb eV against the German company TofuTown, the European Court of Justice decided that purely plant-based products cannot, in principle, be marketed or advertised under the terms such as ‘milk’, ‘cream’, ‘cheese’ or ‘yoghurt’ because the CMO Regulation reserves them exclusively for animal products even if they are followed by explanatory terms indicating the plant origin of the product concerned.

According to the CMO Regulation indeed, milk and milk products benefit from a certain protection in the sense that specific designations are reserved to milk and milk products. By way of an exception, however, the CMO Regulation allows non-dairy products to be designated by those ‘reserved’ names when the exact nature of the product is clear from traditional usage (e.g.: cocoa butter) and/or when the designations are clearly used to describe a characteristic quality of the product (e.g. creamy).

The severity of the Court lies in its consideration that it is not up to the food business operators – and hence to the local courts – to appreciate the scope of the exceptions on a case-by-case basis.

According to the Court indeed, only the designations listed in a compiled list of the European Commission may be regarded as authorised exceptions. Such list was actually already adopted in 2010 (Commission Decision 2010/791), namely before the adoption of the current CMO Regulation. It is based on an indicative list of non-dairy products notified by Member States to the Commission and which traditionally bear, in the relevant Member State, a name normally reserved to dairy products.

The Commission Decision 2010/791 therefore looks like ‘patchwork’ of names categorised per language, not all products being translated in all languages (e.g. ‘pindakaas’ is only listed under the Dutch section; ‘Lait d’amande’ is translated under the Spanish section but not under the Dutch, nor English sections).

Lost in translation

The ruling of the Court raises in addition the issue of translations of the terms included in the Commission’s list. In particular, the Court seems not to accept that translations of names included in the list of the Commission fall under the scope of the authorised exceptions. The ruling stated in this respect that the fact that ‘crème de riz’ in French is included in the list of exceptions does not mean that ‘rice cream’ in English meets the required criteria to be in the list.

By doing so, the European Court goes beyond a national interpretation delivered by the Court of Appeals of Brussels (Belgium) on 10 March 2015 in a case opposing a dairy company to a producer of soya drinks and other plant-based products. The Belgian Court had in that case concretely assessed whether a Dutch translation of the term ‘lait d’amande’ (‘amandelmelk’) presented a risk to mislead the consumer and concluded to the absence of such risk. As a consequence, the Belgian Court of Appeals authorised the use of translations, even if such translation is not mentioned in the complied list of the Commission, but provided that the consumer is not misled.

In addition, the present ruling of the EU Court of Justice creates in our view a new interpretation issue. The reasoning of the Court was indeed adopted despite recital 3 of the Commission Decision 2010/791 which states that the names of the products included in the list according to their traditional use in the various languages of the EU should be usable in all Member States provided that they comply with the EU legislation on food information to consumers.

This therefore raises the question whether the use of such names – untranslated – in other Member States will be compliant with Regulation 1169/2011 on food information to consumers.

Likelihood of misleading consumers

Finally, plant-based products offering alternatives to milk and milk products have become increasingly popular among consumers who choose these products because they do not contain milk or milk-products. One could therefore have expected that one of the criteria to define the legality of the related designations would have been the likelihood to mislead the consumer. In line with the terms of the CMO Regulation, however, the Court of Justice suggests otherwise without analysing whether consumers may be misled or not by the designations at issue. The Court only mentions that the fact of adding explanatory terms to the designations does not exclude the likelihood of misleading the consumers and confirms that the applicable legislation is proportionate to its aims, one of them being the protection of consumers.

Consequently, it appears that the judgment of the Court of Justice leaves little room for interpretation as to the scope of exceptions. Food business operators may therefore want to reconsider the designations they use to sell their products in the EU to avoid any legal action for breaching EU rules. The judgement has already raised a wave of criticism in the media across the EU as it indeed seems to go beyond the letter of the Regulation 1308/2013.

The judgment can be found here.