EU court prevents plant foods being marketed as dairy

German dairy association Verband Sozialer Wettbewerb asked the EU Court of Justice to interpret relevant legislation on the promotion of plant-based products with the labels, “cheese, cream, butter, yogurt and milk.” The ruling concluded that the designations set out above cannot be legally used to designate a purely plant-based product unless that product is mentioned on the list of exceptions, which is not the case for soya or tofu. 

German company, TofuTown produces and distributes vegetarian and vegan foods and argued that its plant-based products under the designations Soyatoo Tofu butter, Plant cheese, Veggie Cheese, Cream and other similar designations did not infringe on advertising legislation.

It argued that the way in which consumers understand those designations has changed considerably in recent years. Moreover, it does not use designations such as ‘butter’, or ‘cream’ on their own, but always in association with words referring to the plant origin of the products concerned, such as ‘tofu butter’ or ‘rice spray cream’.

In that context, the Landgericht asked the court of justice to interpret the relevant EU legislation. The court observed that, in principle, for the purposes of the marketing and advertising in question, the relevant legislation reserves the term ‘milk’ only for milk of animal origin. Additionally, legislation reserves designations like ‘cream’, ‘chantilly’, ‘butter’, ‘cheese’ and ‘yogurt’ solely for milk products, that is products derived from milk.

The court explained that the addition of descriptive or clarifying additions indicating the plant origin of the product concerned, such as those used by TofuTown, has no influence on that prohibition. The court also added that that interpretation of the relevant legislation does not conflict with the principle of proportionality or the principle of equal treatment.

As far as concerns the principle of proportionality, the court observed, in particular, that the addition of descriptive or explanatory terms cannot completely exclude the likelihood of confusion on the part of consumers. As regards the principle of equal treatment, the court found that TofuTown cannot rely on unfair treatment by arguing that the producers of vegetarian or vegan substitutes for meat or fish are not subject to restrictions comparable to those to which producers of vegetarian or vegan substitutes for milk or milk products are subject. Those products are dissimilar and are subject to different rules, it said.

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