ON THE ‘COURTS’ MENU IN 2024....VEGAN SALAMI
After weeks of filing up on those Christmas goodies 2024, we can add to your intellectual diet a mix of case law expected to bring clarity to areas of health claims and labelling.
Protéines France (Case C-438/23): Do vegetable-based animal foods mislead?
On the 23rd August 2023, France issued a notice (http://tinyurl.com/3tb4yvhr) that it intends to prohibit the use of names directly or indirectly referring to meat products that are primarily of plant origin (Meat substitutes). Common names such as Steak and Fillet will be prohibited if containing plant proteins but in reality, other terms such as Chorizo, Pâté, Salami, and Sausage even if preceded or with terms such as vegetable, vegan or soya type terminology. The only permissible inclusion of vegetables is listed in Annex II of the Decree but the amounts are at flavouring/seasoning levels of 0.1-7% depending on the meat.
The only possible good news in the Decree is that exempts products legally manufactured or marketed in another EU Member State or EEA on the basis of mutual recognition (Article 5). However, if allowed the writing would be on the wall for other states to do likewise causing significant fragmentation across EU markets.
Source: www.ocado.com
The legality of Decree No 2022/947 (http://tinyurl.com/53yr64vn) (hereinafter the ‘Decree’) is now under assessment by the Court of Justice of the EU (CJEU) following a bid to have the Decree annulled with the French supreme court (Conseil d’Étate). There are 2 issues before the courts including;
Are the meat terms used buy butchers and the like harmonised at EU level and if not is the French decree in conformity with EU law?
The second question linked to the first but asks do the provisions under Article 17 and Annex VI in effect harmonise the naming of foods in the absence of a legal name (in effect preventing the provisions in the French Decree). So, for example, point 4 of part A of Article 7 permits an indication of where an ingredient has been used to substitute another (in part or whole) in close proximity to the name of the food.
The conflict of animal products substitutes are not new and in TofuTown (Case C-422/16) a manufacturer was sued over the sale of products that used dairy names such as Soyatoo tofu butter and plant-based cheese. In that case the court held products making a substitution of milk from a none dairy source precludes the use of the terminology milk. The basis being would be the likelihood of confusion for the consumer as to the true nature (composition) of the products.
Source: www.retaildetail.eu
The arguments could be that the provisions under article 17 and specifically Annex VI would overcome this issue by informing the consumer that the meat has been substituted. Again, lessons from case law on such issues are instructive here as in the case of Teekanne (Case C-195/14). In Teekanne it was held that the ingredients list that did not include vanilla or raspberry ingredients was not enough to inform the consumer that the imagery of these fruits only represent the taste rather than composition. This was in part the view because the imagery was so strong that the small print in the ingredients list could not correct any consumer misunderstanding.
In this current case we can draw similarities with use of meat type imagery on from of pack vs and indication on back of pack in small print that may state what was a substitute ingredient (vegetable for meat). Although there may be a middle ground for such issue such as making front a centre on pack the term “Meat substitute” this is not a question before the court. It is in our view the court will likely side with prior judgements such as Teekanne and TofuTown and restrict any use of meat substitutes in historically used terms. The result of the judgement could be significant for meat substitutes not only from an immediate ban on conclusion of the case but also from December 31st 2023, which ends the transition period in France for business to sell through stock not in compliance with the Decree (Section 8). Enforcement for none compliance can be as high as €7500 for legal entities (Article 7).