The Court of Justice of the European Union has concluded that purely plant-based products cannot be marketed with designations such as ‘milk’, ‘cream’, ‘butter’, ‘cheese’ or ‘yoghurt’,
In a press release issued by the Court of Justice of the European Union last week, the court noted that, in the case of TofuTown vs. Verband Sozialer Wettbewerb eV, it had concluded that purely plant-based products cannot, in principle, be marketed with designations such as ‘milk’, ‘cream’, ‘butter’, ‘cheese’ or ‘yoghurt’, which are reserved by EU law for animal products.The same is true, the court noted, if those designations are accompanied by clarifying or descriptive terms indicating the plant origin of the product concerned. However, it says, there is a list of exceptions. The German company TofuTown produces and distributes vegetarian and vegan foods. In particular, it promotes and distributes purely plant-based products under the designations ‘Soyatoo Tofu butter’, ‘Plant cheese’, ‘Veggie Cheese’, ‘Cream’ and other similar designations. The Verband Sozialer Wettbewerb is a German association, whose responsibilities include combatting unfair competition, takes the view that promoting those products infringes the EU legislation on designations for milk and milk products . Consequently, it brought an action against TofuTown for a prohibitory injunction before the Landgericht Trier (Regional Court, Trier, Germany). However, TofuTown considers that its advertising does not infringe the relevant legislation. It argues 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. In its judgment, 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. In addition, except where expressly provided, that legislation reserves designations like ‘cream’, ‘chantilly’ , ‘butter’, ‘cheese’ and ‘yoghurt’ solely for milk products, that is, products derived from milk. The Court 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. 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.