On 14 June 2017, the European Court of Justice (ECJ) in a case against German company TofuTown, upheld restrictions in Regulation 1308/2013 (single Common Market Organisation (CMO) on the use of dairy terms including ‘milk’ ‘cream’ ‘butter’ ‘cheese’ and ‘yoghurt’, even where the sales description applied to the food expands this to make it clear that it is not of animal origin, i.e. ‘soya milk’ and ‘plant cheese’ or 'veggie cheese'.
The court found ‘milk’ shall mean exclusively as stated within CMO 1308/2013 ‘normal mammary secretion’, and that the use of extra descriptive or clarifying phrases ‘has no influence on that prohibition’.
The term "milk" can therefore be used only for milk and milk products (as they are listed in the CMO).
There are some listed exceptions for certain products where the exact nature of which is clear from traditional use and/or when the designations are clearly used to describe a characteristic quality of the product i.e. coconut milk, salad cream, cream soda and certain nut butters as per Decision 2010/791/EU. However, soya and tofu are not exempted.
The intention behind Regulation 1308/2013 CMO that provides for this restriction was held to protect consumers and the production and marketing and quality of dairy products.
The ‘principle of proportionality’ was examined and it was found that the provisions were appropriate and necessary to protect consumers from any confusion on composition.
The ‘principle of non-discrimination’ was examined and it was found that the technical rules adopted to regulate various sectors of the market (i.e. vegetarian substitutes for meat or fish are not subject to the same restrictions) did not make them inconsistent with the principle of equal treatment.
Worldwide sales of non-dairy milk alternatives have more than doubled between 2009 and 2015 according to Euromonitor. There is a move towards plant-based alternatives for health conscious consumers.
This judgement shows a level of strict interpretation on defined food terms. Food producers need to take particular care to avoid any confusion between defined terms or equivalents and any alternative product in light of this ruling.