Plant products cannot be marketed as “dairy,” was stated by the European Court of Justice. TofuTown which is a German Company, 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. They ruled that according to EU law the term “milk” is basically reserved for milk of animal origin only.” The same also applies to milk products such as “butter,” “cheese” and “yogurt.” There are only a few specifically defined exceptions, for example the English term “cream.” The unique and natural blend of micro and macronutrients of milk and dairy products cannot be matched by any plant-based products.
The Verband Sozialer Wettbewerb is a German association, whose responsibilities include combatting unfair competition, and 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. However, TofuTown considered 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’.
The Court observed that, in principle, for the purposes of the marketing and advertising, the relevant legislation reserves the term ‘milk’ only for milk of animal origin. In addition, except where it is expressly provided that legislation reserves designations like ‘cream’, ‘chantilly’, ‘butter’, ‘cheese’ and ‘yoghurt’ solely for milk products, which is products derived from milk. The Court also concluded that the designations set out cannot be legally used to designate a purely plant-based product unless that particular 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, had no such influence on that prohibition. The Court also added that that interpretation of the relevant legislation did not conflict with the principle of proportionality or the principle of equal treatment. As far as the principle of proportionality was concerned, 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.