Designation vegetarian and vegan products, what is allowed and not allowed in the Netherlands and the EU?

More and more vegetarian and vegan substitutes for familiar animal products such as dairy, meat and fish products are appearing on the market. The naming of such products regularly leads to discussions regarding the misleading nature of the name. How is this actually legally regulated in the Netherlands and the European Union?

The labeling of food products in most cases requires the inclusion of a designation. This can be a legal, common or descriptive name, depending on the product. For some product(groups) a legally required designation can or must be used. A legally mandatory designation is defined in European or national regulations. In some cases it is mandatory to use such a name. In other cases, the use of this name is voluntary, but the name may not be used for other products. What exactly applies to the naming of animal products?

European legislation

EU legislation has established different names for animal food products. For example, Regulation (EU) No. 1308/2013, the Common Market Regulation, has established requirements for the use of the designation "milk. For example, it stipulates that milk is, by definition, secreted by a mammary gland and obtained at one or more milkings. Terms such as "soy milk" and "oat milk" are therefore not allowed. In addition, terms such as cream, butter, buttermilk, cheese, yogurt and kefir are also exclusive to dairy products.

To illustrate, in two well-known lawsuits, food manufacturers did not adhere to the above requirements. In 2017, there was a European lawsuit over the name "tofu butter" used on a plant-based product consisting of tofu. There was also a Dutch lawsuit this year over the name 'creambeter' on a plant-based alternative to cream butter. Both names were not allowed based on Regulation (EU) 1308/2013 which reserves the terms 'butter' and 'cream' exclusively for dairy products.

In contrast, specific meat and fish products, such as steak, chicken breast and salmon, have not been defined in this way at the European level. The Agriculture Committee of the European Parliament did make a proposal in 2019 to ban the use of names associated with meat products or traditionally reserved for meat products, for example, hamburger and sausage, for vegetable protein products. However, this proposal was not adopted by the European Parliament.

Dutch law

In the Netherlands, in addition to the European protected terms, a number of specific names for animal products are protected in various commodity laws. For example, the Warenwetbesluit Vlees, gehakt en vleesproducten (Commodities Act Decree on Meat, Minced Meat and Meat Products) contains requirements for the use of the name '(lean) minced meat' and 'tartar'. In addition, the Commodities Act Decree on Fishery Products, Snails and Frogs' Legs protects the terms 'caviar,' 'new herring' and 'Dutch new'. Furthermore, the Dairy Commodities Act Decree contains requirements for the use for the terms 'whipped cream,' 'cheese,' 'yogurt' and 'chocolate milk.' There is also a Commodities Act Decree on Reserved Designations that protects the designation mayonnaise and ice cream, among others. For example, mayonnaise is required to contain at least 5% egg yolk and ice cream must not contain any fat and protein other than milk fat -protein.

Position of Minister of Health, Welfare and Sport

Furthermore, the Minister of Health, Welfare and Sport (VWS) has adopted a general position for the naming of vegetarian products. This can be found in the Handbook of Food Labeling. This position consists of three points:

Common meat designations may be used in the product name provided it is clear that it is a vegetarian variant. For example, "Vegas schitzel" and "vegetarian smoked sausage" are permitted.
Animal species names may be used, again provided it is clear that it is vegetarian. So "Vegetarian chicken pieces" or "vegetarian crab salad" are allowed.
No reserved designations may be used, as explained above. It is emphasized that this is also not allowed in combination with "vegetarian. In addition, it is stated that misspelled animal species names or misspelled reserved designations are not allowed. To illustrate, minced meat is a reserved name and the term "hacked" may not be used in that case.

European developments

In several EU member states, there is discussion about the use of common meat designations for vegetarian or vegan alternatives. Some member states have even established national rules on this issue. For example, the French state had recently passed legislation banning the use of meat designations for meat alternatives, which was to take effect May 1. This legislation only applied to French producers; producers from other countries were allowed to continue selling meat alternatives with meat designations in France.

However, this legislation has been suspended at the request of several plant-based food producers. According to these parties, among other things, this law would not be legal based on EU legislation. At issue is whether naming substitute products is harmonized in EU legislation.

A European court case was pending on this question, and on Oct. 4 the European Court of Justice (ECJ-EU) issued a ruling. The Advocate General, who assists the ECJ-EU with preliminary advice, found that that naming of substitute products is not harmonized in EU legislation and thus member states may adopt national measures. The ECJ-EU, on the other hand, had a different approach. The CJEU agreed that Regulation (EU) No. 1169/2011 allows for the adoption of legal designations at the national level if this has not been done at the EU level. However, the French authority had clearly indicated that this was not a legal designation. In addition, a legal name, based on Regulation (EU) No 1169/2011, should set certain conditions regarding the composition of the food and not a measure prohibiting the use of a non-legal meat name for vegetable products.

In addition, based on Regulation (EU) No. 1169/2011, a common or descriptive name may not be misleading. However, according to the CJEU, a consumer is not deceived if it is clearly indicated that a naturally present component or a normally used ingredient has been replaced by another component or ingredient (e.g. in the case of the name "vegetarian schnitzel").

In short, the ECJ found on the basis of Regulation (EU) No. 1169/2011 that when a Member State has not adopted a legal name there cannot simply be a general prohibition preventing producers of food products based on plant proteins from using certain common or descriptive names, such as traditional names for meat products. The French law was thus judged to be unlawful. However, there is a proper legal path to achieve such a ban. Member states must then first legislate these terms in order to ban them, which can be a complex and time-consuming process, risking new harmonization problems within the EU.

The long-awaited ruling of this lawsuit is very important for many EU member states, and it will influence national discussions on the use of common meat designations for vegetarian or vegan alternatives.