'Plant-Based Power' – The Market Drivers & Legal Implications

Is 'Plant-Based' the next big opportunity for food ? What lessons can be shared?

It was standing room only at Houlihan Lokey’s European Retail, Food & Consumer Conference 2019 for the break-out topic on ‘Plant-Power’; featuring a panel made up of the Meatless Farm Co, Vegetarian Express, Danish company HAK, Plenish Drinks and Food for Progress – Oumph!.

The companies spanned the direct to consumer offering through to ingredients and food services through to providing supermarket own brand products.

There were a few things that stood out amongst all the speakers that are all inter-connected.

1. The Positive Attitude

The attitude is positive and upbeat, confident in the product and with good reason; the graphics showed a significant and ongoing increase in consumer demand.

Some quoted figures was the market opportunity to replace 10-15% of meat consumption in the next 10 years, and currently 1/3 of consumers looking for plant-based options on menus.

Kara Rosen founder and CEO of Plenish Drinks discussed publishing her recipes in order to raise awareness and Anna-Kajsa Lidell co-founder of Food for Progress – Oumph! talked about one planet and the need for co-creation and cooperation.

The products themselves and their market share growth clearly illustrate the demand but such products must according to the panel have the same convenience and taste points as the animal-based choices. A point that resonated was that in the electric car market it took Tesla’s more powerful performance offering to start tempting the car enthusiasts of America into the electric model; therefore plant-based food should compete on a level playing field with animal -based foods without relying solely on its’ ethical basis.

2. Inclusion

The market-place for these goods, although with a staunch contingent of vegetarian and vegan consumers, does not isolate itself from the mainstream.

The main increase in demand is coming from those who wish to simply cut down on animal based products; flexitarians, those who are seeking an occasional meat or dairy free option for either health, welfare or environmental concerns.

Timo Hoogeboom CEO of HAK summarised this well as ‘We don’t tell people what to do but we do boost every meal with greens and beans.”

Morten Toft Bech founder of the Meatless Farm Co stressed the need to avoid pointing the finger and David Webster MD of Vegetarian Express stated the need to bring the masses with them.

Morten Toft Bech of the Meatless Farm Co, in a panel discussion, even went so far as to advocate a ‘protein aisle’ rather than a ‘meat aisle’ and that this may even mean consumers might buy more of both plant-based and animal-based protein. An illustration of this was, as Kara Rosen of Plenish Drinks stated, that although 1 in 3 households in UK consumer plant based alternatives to milk; 1 in 9 purchasers also buys dairy.

3. The Drivers

The drivers for these businesses may be summarised (as by Morten Toft Bech of the Meatless Farm Co) as:

  1. health
  2. environment
  3. animal welfare.

The belief in the products and their support for the ethical underpinnings are genuinely held and this in turn feeds in to the ‘one planet’ inclusive nature of the brands.

Legal Issues re promoting these USPs

From an ethical point of view the foods are inter-twined with their drivers; and these same drivers can be utilised by any food company to promote their products.  However, as with any voluntary claim made on a product it is important that this is properly substantiated and legally compliant. Foods should not mislead as to their nature, substance or quality and should be labelled, advertised and presented in a way that is not false or misleading according to The Food Safety Act 1990. Where any voluntary claims are made they should be appropriately substantiated and comply with legislation, case precedent, Food Standards Agency (FSA) guidance and Advertising Standards Authority (ASA) adjudications.

Name of Foods: Descriptive vs Defined Terms

The name of the food must be legally compliant and with an appropriate description to properly inform the consumer of the nature and characteristics of the product.

A strict interpretation has been adopted by the EU courts on legally defined food terms for dairy; this means that there are restrictions 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'. 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 EU Parliament Agriculture Committee this year voted in favour of terms used to describe meat products being reserved exclusively for products made from meat; therefore vegetarian and vegan burgers and sausages would be classified as “discs and tubes”. If this was subsequently legislated on it would be illegal to sell veggie ‘burgers’, ‘sausages’, ‘escallops’ and ‘steaks’. The argument against this move is that consumers are not misled by these terms, that are descriptive terms rather than defined names, and they play an important function in communicating characteristics that consumers are looking for when buying plant-based products, especially in terms of taste and texture. Also that the legislation would be unnecessarily restrictive on a growing and innovative industry where the terms have been successfully used for a range of products for decades and without evidence of confusion.

Health Claims

The making of any health or nutrition claim is tightly regulated by EU Regulation 1924/2006 on nutrition and health claims made on foods (the Regulation.) The Regulation defines health claims very broadly as those that stated, suggested or implied a relationship between a food and drink or ingredient and health. Only health claims listed as authorised on the EU Register of health claims made on foods were permitted in marketing communications and labelling. References to general benefits of a nutrient or food for overall good health or health-related well-being i.e. ‘better for you’ were acceptable only if accompanied by a specific authorised health claim. Care should also be taken to avoid an ‘implied’ health claim (graphics can also form part of a claim) unless this can be substantiated.  

This may be where ‘health’ in a broader context is considered as healthier for the soul and the environment.  

Kara Rosen stated a key driver for Plenish Drinks was ‘inspiring people to make healthier choices on a daily basis’.

This then brings the unregulated terms and their legal context.

Unregulated Claims etc.

The making of voluntary terms, for example some ‘plant-power’, welfare, environmental and vegetarian/vegan claims will have an accompanying raised expectation of standards and some positive substantiation will be required of underlying policies if these are challenged by trading standards or the ASA.  However, these claims represent a real opportunity for food producers to differentiate themselves and their products and allow consumers to identify with the product range.

The Food Standard’s Agency (FSA) 2002 Guidance note on ‘Criteria for the use of the terms fresh, pure, natural etc in food labelling’ refers to a number of unregulated terms and provides an overview on what should underpin these general (and any similar or like-meaning) terms.  This guidance, although not legislation, tends to be strictly applied by both the ASA and the courts.  However, these will be affected by the consumer’s understanding and the overall context of the advertising; the UK’s Advertising Standards Authority (ASA) has accepted in some cases the consumer is much more savvy on expectations of illustrations of artisan aspects in a commercial context. There has been a progression on this in the ASA’s thinking from its ruling on the Iceland range of breads in 2015 to its finding on Pret A Manger ‘baked in store’ advertising in April 2018.  

Natural

The FSA Guidance states that ‘Natural’ meant ‘produced by nature, not the work of man or interfered with by man’”, and which had only been subjected to such processing as to render them suitable for human consumption.  It has been found to be misleading to use the term to describe foods or ingredients that employ chemicals to change their composition or comprise the products of new technologies, including additives and flavourings that are the product of the chemical industry or extracted by chemical processes. In this interpretation even sunflower oil and fat reduced cocoa powder have been found by the ASA to fall outside of the FSA’s guidance for the use of the term natural involving as they do a refining process for the sunflower oil and the addition of potassium carbonate solution for the cocoa powder. (United Biscuites (UK) Ltd t/a Go Ahead.)  

Sustainability/Fair Trade/Welfare/Environmental

Welfare and sustainability claims are not strictly defined. For example, the use of 'fair trade' statements are not necessarily tied into specific schemes, but must encapsulate the generally understood principles that would underpin a fair trade claim, such as measures to ensure that fair prices were paid to producers and to ensure the standards of working conditions.  

There is no exclusiveness provided to ethical words and marketing but any confusion with specific schemes should be avoided; particularly where one might be thought to be taking advantage of the much broader knowledge-base and reputation of another.

This is particularly the case with environmental claims which should be regularly substantiated and transparent; a 'natural' claim and green packaging can increase the strength of any environmental claim and so any requisite substantiation. Care should be taken where one aspect of the product is highlighted to ensure that a broader implied claim is not being made; for example if the global carbon footprint is being considered as opposed to the carbon footprint in the specific country of sale this should be made clear.  

Vegetarian / Vegan

Whilst again there is no definition of vegetarian or vegan within current legislation, (it has been reported that the European Commission will begin the process of establishing a legal definition of vegetarian and vegan food in 2019,) the general consumer understanding would be that the product is free from animal /animal by-products in its’ production and processing. Checks and testing should ensure these claims and standards are complied with. The standard is much higher for processes to ensure no low level contamination or use of processing aids using animal by-products than would otherwise be the case without this positive claim.

For advice on this or any other related matter please contact Jessica Burt by email Jessica.Burt@mills-reeve.com

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