VEGGIE BURGER BACK ON THE MENUE ACROSS THE EU (Case C-438/23)
Back in January we gave an overview of the Case that was sitting before the European courts on being able to use traditional names associated with products of animal origin on vegetable alternatives (e.g. stake or sausage). On the 4th October that case concluded.
Spoiler it’s a win for industry and a win for the authorities…
Refresher
As a reminder the 4 entities (1 food business and 3 vegan/vegetarian trade associations) contested a French decree that protects consumers from being misled over the manner food information may be presented in the name of a food. In effect it banned the use of names traditionally used exclusively for animal products by vegetable protein alternatives e.g. Veggie Sausage or Steak.
The Update
The entities asked the French Conseil d’Etat (Council of State – supreme court in France) to annul the contested decree and the Conseil d’Etat then requested a preliminary ruling from the CJEU on a series of questions including:
Is Article 7 of 1169/2011 for all intents a harmonisation of law relating to the identity, nature and qualities of a food (e.g. suggesting a food is of animal origin when in fact from vegetables) preclude Member States from intervening on such matters via national measures?
The court held such national measures are not precluded provided they are consistent with the provision of information to consumer to make informed choices and to prevent practices which mislead them. Yet in relation to the current case as the provisions in regulation 1169/2011 (Art 2(2)(o), Art 9(1)(a) and Point 4 (Part A) of Annex VI already protect consumers at risk of being misled by names consisting of terms such as steak as attached to vegetable proteins. In addition, it also does not prevent national measures that provide effective, proportionate and dissuasive penalties in relation to the achievement of those aims.
The practical application here is provided no national law is in place defining a legal name e.g. Sausage is a legal name only related to animal protein, then provided the vegetable based alternative makes clear the name (descriptive or customary) used refers to a vegetable version (e.g. Vegetable Sausage or similar) cannot be prohibited.
It was also asked could the use of such vegetable protein-based names be restricted based on a minimum compositional requirement (e.g. levels of vegetable protein required to use the name). Again, the harmonisation prohibits such rules being applied to descriptive or customary names, with the exception of imposing compositional standards to that of legal names.
Conclusion
This is a blow for the French authorities and the case will now go back to the French courts to make a final decision on the dispute.
Source: https://curia.europa.eu/jcms/upload/docs/application/pdf/2024-10/cp240168en.pdf
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