Is it allowed to use meaty names for meat substitutes?
Posted: September 6, 2024 Filed under: Food Comments Off on Is it allowed to use meaty names for meat substitutes?
On 5 September 2024, Advocate General (AG) Capeta rendered her opinion in the case initiated by Protéines France, Union Végétarienne, Beyond Meat and others against the French state, disputing a French national Decree limiting the use of meaty names for meat replacements. This Decree dates back to 2022, implementing a specific article of the French Consumer Code. According to this article, the names used to designate foods of animal origin cannot be used to describe, market or promote foods containing vegetable proteins.
Two French Decrees
This Decree was immediately under fire by the same parties mentioned above before the French Council of State. According to them, the Decree was unlawful since, roughly speaking, the subject matter was fully harmonized at EU level by the Food Information to Consumers Regulation (FIC Regulation). The French Council of State then stayed the proceedings to ask four explanatory questions to the European Court of Justice (ECJ). Meanwhile, France repealed the 2022 Decree replacing it by a 2024 Decree, essentially similar to the previous one. The question then arose if the request for a preliminary ruling became devoid of purpose. The good news is that according to the AG this is not the case, essentially because the Council of State had informed the ECJ that the interpretation sought remained necessary to enable it to rule on the dispute in the mean proceedings.
System of 2024 Decree
The system of the 2024 Decree is twofold. First, it establishes a list of terms of the use of which is prohibited for the designation of foods containing vegetable proteins (examples: entrecôte, steak, jambon). Second, it authorizes the use of certain terms for the designation of foods of animal origin containing vegetable proteins, provided they do not exceed a certain proportion (examples: cordon bleu (maximum 3,5 % vegetable protein), merguez (maximum 2 % vegetable protein of which 1 % should consist of herbes), terrine de campagne (maximum 5 % of vegetable protein). Products legally manufactured or marketed in another Member State of the European Union or in a third country are not subject to the requirements of this Decree. French companies are however subject to a fine of € 7.500 if they act in violation thereof.
International context
These days, France is not the only Member State where naming issues of meat replacements arise. In fact, in several EU countries such as Italy, Poland and Romania, similar rules as in France have been adopted. Also outside the EU like in the US, in South-Africa and in Switzerland, similar legislative initiatives took place. At the same time, in countries like the Netherlands and in Germany, measures have been adopted expressly allowing the use of meaty names for non-meat products, specifically aiming to prevent any misleading of consumers. For example, in the Netherlands a product can be legally sold under the designation of “vegaschnitzel” (vegetarian Schnitzel) or “vegetarisch krabsalade” (vegetarian crab salad). So, it is about time to have a decision on this topic at European level. Should we be happy with the opinion of AG Cadeta? This most likely depends which side you are on. If you are a manufacturer of conventional meat products, this opinion will most likely meet your approval. If you are a food innovator, proposing alternatives to conventional meat, you will most likely be disappointed. This is why.
AG does not consider use of substitute products harmonized at EU level
The basic question in this debate is whether European legislation has specifically harmonized the naming of substitute products. According to the AG, this is not the case. As a consequence, this leaves room for Member States for establishing legal names, reserving those names for particular foods. Legal names should be distinguished from customary or descriptive names according to their intended effect. If the effect of national rules is that certain names are reserved for certain types of products, then they qualify as legal names. By adopting national measures prohibiting the use of certain customary and descriptive names, including when they are accompanied by additional indications that the product at issue contains plant-based, instead of meat-based, proteins, a Member State turns those customary and descriptive names into legal names. This is precisely the effect of the 2024 Decree and Member States are entitled to do so. The AG goes on to reason that the FIC Regulation does not preclude Member States from adopting national measures according to which meat replacement products can only have a maximum of vegetable proteins when using meaty names. Relevant here is that a distinction is made between domestic production and production abroad. In fact, the 2024 Decree stipulates that its rules do not apply to any imported products. The AG therefore considers the France Decree a purely internal matter. Finally, national administrative penalties sanctioning this regime are not counter to the FIC Regulation.
FIC Regulation does provide for harmonization of replacement products
I do not dispute that Member States can establish legal names at national level; this follows indeed from the FIC Regulation. This may be suitable in the context that food is highly cultural – certain dishes are found in one Member State and not in the other. This is the cultural wealth of Europe, where you only need to travel a few hundred kilometers to find entirely different landscapes, languages and cultural habits. I have however troubles to digest the conclusion that because of the fact that Member States can establish legal names for their specific food products, the subject matter would not be specifically harmonized at EU level. In fact, the FIC Regulation specifically addresses the topic of replacement products in its Annex VI. According to the AG, the rule laid down therein covers the use of meaty names for plant-based substitute products. From the Tofutown decision she however draws the learning that the Annex VI rule only applies if the meaty name is not a legal name. The difference between that case and the present one is that the legal names prohibiting the use of dairy names for dairy replacement products were embodied in the COM Regulation. This is specific harmonization at EU level indeed. In my view, it is questionable if legal names at national level that were newly established for a specific goal (see below) should be attributed the same weight as legal names that have been around for long at EU level, also taking into account the consequences thereof. This is all the more so, now that legal names are usually not prohibited terms as in the 2024 Decree, but positively phrased (example: “The beef and veal sector shall cover the products in the following table: live animals of the domestic bovine species… meats of bovine animals… fats of bovine animals….” – see COM Regulation Annex I, Part XV).
Consequences if ECJ adopts opinion AG Cadeta
If the ECJ embraces this opinion in its decision, there is a good chance that the 2024 Decree will stay in effect and will be enforced in France. Therefore, France national manufacturers of meat substitutes will be very much limited in the designation of their products. As such, they will be put at disadvantage in comparison to manufacturers in countries without such limitative legislation. Furthermore, other Member States having similar legislation in place most likely will feel confirmed in their policy and also enforce these provisions in their home turf. Companies formulating innovative food products thereby get the short end of the bargain on an EU wide basis. And this is not how the internal market was meant.
Two basic principles of internal market under threat
Two starting principles of the internal market are the free circulation of goods and a high level of consumer protection. Allegedly, the rationale behind the French Decrees was consumer protection. The AG explicitly addresses this topic. She states that it does not matter if the French authorities intended to protect consumers or the meat industry, or whether the reason behind such rules is the protection of national gastronomical heritage. At first sight, such a neutral approach could possibly make sense. At second sight, I tend to disagree. In the first place, because experience in the Netherlands has shown that consumers are not misled if meaty names are used for meat replacements. While the Netherlands may be considered very progressive in this regard, it was already established by ProVeg research in 2022 that plant-based labels do not confuse consumers. Secondly, restrictive measures are not needed to protect a certain industry or cultural heritage, since substitute products are not meant to entirely replace conventional meat products. Instead, they offer additional choice to the consumer, who decides to eat less or no meat. This should by no means be a threat to the meat industry, but an increase of food options for consumers. Exactly the purpose of the internal market.
For the reasons set out above, I sincerely hope that the ECJ will not adopt the current opinion of AG Capeta.
Credits image: Vegconomist, 11 April 2024