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European Union: “Milk” Cannot Be Used to Market Purely Plant-Based Products

(June 27, 2017) On June 14, 2017, the European Court of Justice (ECJ) held that the term “milk” and other milk product names cannot, in principle, be used to designate a purely plant-based product even if clarifying or descriptive terms indicating the plant origin of the product concerned are used (e.g., tofu butter). The Court added that unless it is mentioned on a list of exceptions appended to the relevant European Union law, Commission Decision 2010/791, the term “milk” and other milk product names are reserved for “animal products” as defined in article 78, paragraph 2, and annex VII, part III, of Regulation No. 1308/2013 on agricultural products’ markets.  (Case C‑422/16, Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH (June 14, 2017), INFOCURIA; Commission Decision of 20 December 2010 Listing the Products Referred to in the Second Subparagraph of Point III(1) of Annex XII to Council Regulation (EC) No 1234/2007 (Recast) (Notified Under Document C(2010) 8434) (Commission Decision 2010/791/EU), 2010 O.J. (L 336) 55, EUR-LEX; 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 and Repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, 2013 O.J. (L 347) 671, EUR-LEX.)

The ECJ stated that this interpretation of the relevant legislation was consistent with both the principle of proportionality (article 5 of the Treaty on European Union) and the principle of equal treatment. (Case C-422/16, ¶ 48; Consolidated Version of the Treaty on European Union (TEU), 2012 O.J. (C 326) 13, EUR-LEX.) With regard to the principle of proportionality, which requires EU measures to meet legislative objectives without exceeding the limits of what is appropriate and necessary, the Court said that adding descriptions or explanations on products that do not meet requirements cannot eliminate the likelihood of confusion on the part of consumers. (Case C-422/16, ¶ 48.) With regard to the principle of equal treatment, the Court reiterated that the principle is only violated when comparable situations are treated differently and different situations are treated alike unless objectively justified.  In the Court’s view, the fact that producers of vegetarian or vegan substitutes for meat or fish are subject to less restrictions than producers like TofuTown does not violate the principle of equal treatment, because those  meat and fish substitutes are dissimilar to the milk and milk products substitutes. (Case C‑422/16, ¶¶ 49-50.)

Facts of the Case

The parties in the case were the Verband Sozialer Wettbewerb eV (VSW), a German association whose responsibilities include combatting unfair competition, and TofuTown GmbH (TofuTown), a company that produces and distributes vegetarian and vegan foodstuffs. (Case C‑422/16, ¶ 15.) VSW alleged that TofuTown confused consumers by marketing its purely plant-based products using “Soyatoo tofu butter,” “veggie cheese,” and other similar names, thereby infringing the German Act Against Unfair Competition in conjunction with Regulation No. 1308/2013. (Id. at ¶ 16; Gesetz gegen den unlauteren Wettbewerb [UWG] [Act Against Unfair Competition], Mar. 3, 2010, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 254, as amended, § 3a, GERMAN LAWS ONLINE; Act Against Unfair Competition (as last amended by the Act of Feb. 16, 2016), GERMAN LAWS ONLINE.)

VSW therefore brought an action for a prohibitory injunction against TofuTown before the Regional Court in Trier, Germany (Landgericht Trier). (Case C‑422/16, ¶ 16.) The Regional Court Trier stayed the proceedings and referred the question on how to interpret the relevant EU legislation with regard to the use of the term “milk” and the designations for milk products to the ECJ for a preliminary ruling, based on article 267 of the Treaty on the Functioning of the European Union. (Id. ¶ 19; Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2012 O.J. (C 326) 47 EUR-LEX.)