TofuTown (a German food company) sells plant-based products with names like ‘Soyatoo Tofu Butter’, ‘Veggie Cheese’ and ‘Rice Spray Cream’. Verband Sozialer Wettbewerb, a German consumer protection group complained in a regional court that these products infringed the provisions of Regulation (EU) No 1308/2013 (the Regulation) on milk and milk products. TofuTown denied the allegations, arguing:
- consumer understanding of such designations has changed considerably in recent years; and
- the products did not use the designations on their own, but always in association with words referring to the plant origin of the product.
The regional court sought a preliminary ruling from the CJEU on the interpretation of the Regulation.
The decision of CJEU The CJEU interpreted the relevant provisions strictly. For the purposes of marketing and advertising, the term milk can only be used for milk of animal origin. In turn, designations like cream, butter, yoghurt and cheese can only be used for milk products, i.e. products derived from animal milk.
The provisions do allow for some exceptions, for example coconut milk, peanut butter and almond milk. However, soya and tofu are not in this category and thus are not exempt from the prohibition. The court also made clear that indicating the plant origin of the product in the designation does not cure the product of the infringement.
What is the effect of this decision?
Put simply, tofu or soya based products cannot be sold as milk or milk products. It is now up to national courts to enforce the CJEU’s decision. In light of the recent judgment, the UK courts will be bound to apply a strict interpretation of the provisions.