The Ministry of Agriculture of the Czech Republic (hereinafter referred to as “MZe”) and the State Agricultural and Food Inspection Authority (hereinafter referred to as “SZPI”) draw attention to the need to comply with the requirements of legal regulations in the field of food labelling in connection with unwanted labelling of plant products with names reserved for milk and milk products.
The above relates to the situation concerning a number of food which have a designation in their name, on their label, in a commercial document, in promotional material or in any other form of advertising which is legally reserved for milk and milk products, even though they are plant-based alternatives to these products for which the use of the terms in question is prohibited.
These are, for example, labels such as “oat milk” or “soya butter” or “almond milk”, etc., which imply or convey the impression that the product is a product of, or contains, the dairy sector.
In similar cases, according to the supervisory authorities, the consumer is misled as to the nature of the product, thereby undesirably contravening the legislation in force.
In the following article, we would like to give you an overview of the basic terminology and legal regulation in the field of labelling of plant products and the current topic of consumer deception in relation to these labels.
Labelling of milk and milk products
The legal basis for the labelling of milk and dairy products is Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products (hereinafter referred to as “Regulation No 1308/2013”), which expressly provides in its article 78 that the definitions, designations or sales descriptions set out in annex VII to Regulation No 1308/2013, i.e. including the labelling of milk and milk products intended for human consumption, may be used for marketing in the European Union only in the case of a product which complies with the relevant requirements set out in that annex.
According to the provisions of annex VII, Part III, point 1 of Regulation No 1308/2013, “milk” means exclusively the normal fluid secreted by the mammary gland obtained from one or more milkings without anything being added to or removed from it.
Point 2 then defines “milk products” to mean products obtained exclusively from milk, although other substances necessary for their manufacture may be added, provided that such substances are not used to replace, in whole or in part, any milk component, the names “cream”, “butter”, “buttermilk”, “cheese”, “yoghurt”, “kefir”, etc. being reserved exclusively for milk products at all stages of marketing.
Furthermore, in a subsequent point in the annex to Regulation No 1308/2013, it is reiterated that the designations referred to in points 1 and 2 may be used only for the products referred to in those points.
The above is supported and concretised by the case-law of the CJEU in Case C 422/16 Verband So- zialer Wettbewert eV v TofuTown.com GmbH, where the CJEU concluded that Article 78 and annex VII, Part III of Regulation No. 1308/2013, must be interpreted as precluding the term “milk” and the names which that regulation reserves exclusively for milk products from being used, in marketing or advertising, to designate a plant product, even if those names are accompanied by explanatory or descriptive information about the plant origin of the product in question, unless that product is listed in annex I to Commission Decision No 78/2013. 2010/791/EU of 20 December 2010 establishing the list of products referred to in the second subparagraph of point III (1) of annex XII to Council Regulation (EC) No 1234/2007 (hereinafter referred to as “Commission Decision 2010/791/EU”).
Commission Decision 2010/791/EU provides exemptions for the labelling of products whose precise nature is clear from traditional usage or where the indications are clearly used to describe a characteristic feature of the product. In the past, individual member states have been able to apply for an exemption and register such names with the European Commission. The Czech Republic has not applied for such exemptions, however, those listed in Commission Decision 2010/791/EU for other countries, such as “peanut butter” or “coconut milk” or “cocoa butter”, etc., can also be accepted here.
It is coconut milk that is the only possible and allowed combination in the name for a plant product and milk. No other plant-based beverage such as soya, poppy, almond, oat, buckwheat, etc. can be referred to as milk.
In this context, the issue of protecting the names actually used for certain dairy products such as eidam, cheddar, gouda, mozzarella, etc. must also be addressed. These names generally enjoy intellectual property protection and are also defined in internationally recognised Codex Alimentarius standards.
When labelling plant-based products, similar terms appear on the market, such as “Cheddar cheese alternative”, “Mozzarella pizza alternative”, “Ajdam”, etc., when the basis of these products is not milk within the meaning of annex VII, part III, point 1 of Regulation No 1308/2013.
In view of the wording of Regulation No. 1308/2013 and the interpretation of the Court of Justice of the EU, SZPI and the MZe are inclined to the opinion that it is not possible to use the above-mentioned designations for milk products, within the meaning of the above-mentioned legislation, when labelling entirely plant products.
Labelling of plant products
There is as yet no separate legislative regulation for the labelling of plant products, either at European or national level. However, legislation for vegetarian and vegan food is currently being drafted by the European Commission in cooperation with the European Vegetarian Union to regulate the labelling of plant-based alternatives.
Until such time as specific legislation is adopted, the labelling of these foods must be governed by general legislation, in particular Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers (hereinafter referred to as “Regulation 1169/2011”), which applies across the board to all foods.
According to Regulation No 1169/2011, food information must generally not mislead, deceive or mislead the consumer, in particular as regards the characteristics of the food, its effects or properties.
Given that alternative plant-based foods do not have a legal name, and given the short time on the market when these foods do not yet even have an established name, it is best to name the food according to the main ingredient used – e.g. “coconut dessert”, “soy dessert” (e.g. for plant-based yoghurt alternatives), “probiotic almond drink” (e.g. for plant-based yoghurt milk alternative, kefir), “oat drink” (e.g. for plant-based milk alternative).
According to Act No. 110/1997 Coll., on Food and Tobacco Products and implementing Decree No. 417/2016 Coll, on Certain Methods of Food Labelling, food information must not contain misleading information that could, in particular, in a derivative or diminutive form, lead to confusion of food with foods that are defined by the legislation regulating foods, including milk and milk products, which also excludes labels such as “Oat mi*k”, “Soy cr*am”, “Joguart”, “Non-milk”, etc.
According to the interpretation of Regulation No 1308/2013 by the SZPI, the use of the terms “imitation of milk product” or “analogue of milk product” is also prohibited in this context.
The MZe and the SZPI have received several indications of the occurrence of the above-mentioned prohibited labelling of herbal beverages. However, the situation undoubtedly also applies to all other types of food. In view of the current situation, according to the SZPI communication, from January 2023 onwards, the supervisory authorities will be carrying out more intensive control actions in this matter.
Labelling of plant products with names reserved for milk and dairy products may lead to sanctions under Act No. 634/1992 Coll., on Consumer Protection, as amended, and Act No. 40/1995 Coll., on Advertising Regulation, as amended, for which the supervisory authority may impose sanctions of up to CZK 5,000,000.
The above-described labelling of food may also be qualified as an unfair competition act in the form of misleading advertising and misleading labelling of goods, which in private law entitles the persons concerned to claim the abstention from the act, the elimination of the defective condition, the provision of adequate compensation, compensation for damages or the release of unjustified enrichment.
As described above, both the MZe and the SZPI consider the current undesirable state of affairs in relation to the labelling of plant products with names reserved for milk and milk products to be a matter of real urgency and have repeatedly drawn attention to the need to comply with the requirements of all applicable legislative provisions, including the special requirements which are imported from past practice in this area.
In order to avoid penalties in the event of adverse findings and to avoid as far as possible misleading the consumer on the part of food business operators, it cannot but be recommended that the legal regulation and recommendations of the competent authorities be duly reflected and that the labelling of plant products be brought into line with the relevant rules.
In case of any queries regarding food labelling as well as other substantive issues related to food law, we are at your disposal so do not hesitate to contact us.
Mgr. Tereza Dvořáková, attorney-at-law – email@example.com
Mgr. Jakub Málek, managing partner – firstname.lastname@example.org
16. 01. 2023