For five years, a dispute about the differences between Bulgarian sour milk (the traditional yoghurt) and regular yoghurt led to dozens of court proceedings.
In 2012, the Bulgarian Food Safety Agency (“BFSA“) carried out massive inspections of the composition of products released on the market as “yoghurt”. Producers and retailers were fined for incorrect labelling. But then a discrepancy between EU and national legislation occurred, leading to a flurry of court proceedings to clarify what “yoghurt” actually means in Bulgaria.
In 2010, the National Veterinary Service (“NVS“), one of the predecessors of the subsequently established BFSA, issued an order which provided that “products made with milk, with added non-milk ingredients must not be labelled as ‘milk products’” and that for the production of milk products “only the addition of rennet, starter culture and calcium chloride shall be allowed“.
The following question arose: How should a product be labelled if it contains added berries and sugar, for example? As “yoghurt with fruits” or, as the official control proposed, a “fruit-and-milk dessert”?
Obviously, the NVS order contradicted EU law. By imposing additional restrictions on milk products produced and marketed in Bulgaria, it was not in line with the requirements of the directly applicable Single CMO Regulation1. Thus, the order was successfully challenged in court and in 2012 revoked as unlawful.
A couple of months later, the Bulgarian Ministry of Agriculture and Food introduced an amendment to the local Dairy Products Ordinance2 (the “Ordinance“) implementing the requirements of the revoked order, claiming that it aims to protect consumers. The amendment introduced:
- (i) definitions of: sour milk (ie the traditional Bulgarian yoghurt), yoghurt and lactic acid product; and
- (ii) obligatory names of products produced outside Bulgaria for the Bulgarian market to be translated into Bulgarian in accordance with the definitions.
According to the Ordinance, sugar, gelatine, fruits, starches, food additives, enzymes, flavourings, etc are permissible ingredients of yoghurt and lactic acid products only (as defined in the Ordinance). It also states that dairy-analogue products are to be arranged for retail sale on a separate shelf, ie away from the dairy products.
The lawfulness of the cited ordinance amendment was also challenged before the Bulgarian Supreme Administrative Court (“SAC“). The first instance found it in breach of the procedure stipulated in Directive 98/34/EC3 and struck down the amendment on procedural grounds, without ruling on the material unlawfulness of some of the provisions. Only in 2013, the SAC, acting as the court of last instance, repealed the requirement for the translation of names. However, the official control spotted this judgment 18 months later.
Status quo ante bellum
The currently applicable version of the Dairy Products Ordinance still differentiates among three types of products. It provides that the name “sour milk” (ie the traditional Bulgarian yoghurt) can be used only for fermented milk that has undergone fermentation with Lactobacillus delbrueckii subsp. bulgaricus and Streptococcus thermophiles, where the total amount of the bacteria in the final product is not less than 107 cfu/g. This type of fermented milk must not contain further ingredients, food additives, enzymes and flavourings.
Milk that has undergone fermentation with the above-listed microflora and/or other lactic acid microorganisms in a total amount in the final product not less than 107 cfu/g can be classified and labelled as yoghurt.
Products that have undergone fermentation with the microflora of the traditional Bulgarian fermented milk and/or other lactic acid microorganisms which cannot fulfil the requirement for the total amount of the microflora shall be labelled as “lactic acid products”.
This classification complies with the traditional understanding of consumers, but is this against the requirements of the Community law? Clearly not, since when implementing the requirements and the definitions of the Ordinance, the Bulgarian Food Safety Agency refers to the provisions of par. 2 and par. 3 of Art. 17 of the Food Information Regulation (“FIR”)4.
The currently applicable version of the Dairy Products Ordinance differentiates among three types of products. It provides that the name “sour milk” (ie the traditional Bulgarian yoghurt) can be used only for fermented milk that has undergone a very specific fermentation process.