Placing on the market and advertising purely plant-based products as milk or milk products is incompatible with EU law

The Court of Justice of the European Union in its judgment of 14 June 2017 replied to the question referred for a preliminary ruling by the Regional Court in Trier. The Court clarified whether the provisions of the Regulation of the European Parliament and of the Council no 1308/2013 establishing a common organisation of the markets in agricultural products preclude the use of the term ‘milk’ and the terms which the regulation reserves to designate the products of purely plant origin.

The request for preliminary ruling was made in the proceedings between Verband Sozialer Wettband eV and TofuTown.com GmbH, concerning an action to cease wrongful practices that infringe competition rules.

TofuTown, a company producing and distributing vegetarian and vegan foods, promoted purely plant-based products exclusively through the use of names specific for products of animal origin. The products where promoted under the designations such as: ‘Soyatoo Tofu butter’, ‘Plant cheese’, ‘Veggie Cheese’, ‘Cream’. According to Verband Sozialer Wettbewerb, TofuTown activity infringed §3a of the German Act on combating unfair competition and provisions of the Regulation no 1308/2013.

The Court of Justice of the European Union stated that in the light of provisions of the Regulation 1308/2013 the term ‘milk’ is appropriate for products of animal origin and that the terms such as ‘whey’, ‘cream’, ‘butter’, ‘buttermilk’, ‘yogurt’ are reserved for milk products exclusively, i.e. for products derived from milk and containing its all natural ingredients.

The Court noted that although European law does contain exceptions to the abovementioned rules, their application depends on the fulfillment of additional requirements.

Firstly, the term ‘milk’ and the designations appropriate for milk products may be used for the designation of composite products of which no constituent takes place of milk and of which milk or milk product is an essential part. In Court’s view, however, these conditions are not satisfied by products of purely plant origin which do not contain either milk or milk products.

Secondly, the described limitations do not apply to products that were mentioned in Annex I to Commission Decision no 2010/791/EU and whose nature is obvious because of their traditional usage. However, the list does not include references to soy or tofu products which were the subject of a dispute between TofuTown and Verband Sozialer Wettbewerb.

In the light of the above, the Court held that the term ‘milk’ and the terms reserved exclusively for milk products may not be used to designate purely plant-based products even if the terms are supplemented by an explanation or description indicating the plant origin of the product concerned. The Court underlined that this prohibition applies both to placing products on the market and advertising.

According to the Court, the regulations provide manufacturers with undistorted competition, and consumers are confident that products designated ‘milk’ and the terms reserved for milk products meet the same quality standards, which protects them against the likelihood of making a mistake in the composition of the products.