Traditionally milk comes from cows or other animals such as goats. However, in recent decades, a large number of alternatives to traditional milk were introduced to the market. From a consumer perspective, these alternatives are similar to “traditional milk” in terms of purpose of use. These alternative food products are produced using plant-based protein derived from soy, coconut or other sources. There is an ongoing debate in the US regarding whether or not these ‘alternative milks’ are to be considered ‘milk’ and can be sold as such. This debate could be the precursor to a much more encompassing debate on whether alternative sources for traditionally produced foods from animal origin can be named after the product they are meant to replace, or rather marketed to be the plant based alternative for. This post will elaborate on this discussion, and will discuss the relevant EU framework and prejudicial questions in the Tofutown case pending at the Court of Justice of the European Union (“ECJ”)
The dairy controversy
The dairy controversy has arisen as more and more plant-based food companies are marketing their products as ‘milk’ (“Alternatives”), be it as almond milk or soymilk, but nonetheless as ‘milk’. In the US, the traditional dairy industry (mostly cow milk) has tried to stop the use of the word ‘milk’ for Alternatives, because, its representatives are of the opinion that the term is misleading when used to describe what are in fact Alternatives. This plea did not go unheard and the milk lobby, in combination with a number of lawmakers in the American congress, presented the draft Dairy pride act. The Dairy pride act limits the use of the term ‘milk’, to milk produced from animals (including products such as ‘traditional’ butter). In reaction, the NGO Good Food Institute filed a report claiming that the arguments presented by the traditional dairy industry are invalid. This NGO is of the opinion that no consumer is misled as long as the name of the product ‘milk’ is combined with the alternative source for the milk production. If, and when, the Dairy pride act will enter into force is still unclear.
If you think a similar regulation would be inconceivable in the EU, think again. In fact, in the EU a number of products have a legal definition included in marketing standards. The purpose of these legal definitions is to protect consumers against misleading and to create a level playing field for food business operators (“FBO’s”). For products such as honey, chocolate, and olive oil such legislation exists, which regulates the production process and name under which the product can be sold. In addition to such marketing standards mostly laid down in EU Directives, regulating single products or production chains, there is a general Regulation on agricultural production. This Regulation includes marketing standards for certain agricultural products.
Regulation 1308/2013 establishes a common organization of the markets in agricultural products (hereinafter: CAP Regulation). This regulation lays down production rules for particular agricultural products such as, but not limited to, wheat, wine, and several meat products. The CAP Regulation also applies to milk and milk derived products, and contains the following definition of milk:
‘”Milk” means exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom.’
Apart from the product ‘milk’, Annex VII part 3 of the CAP Regulation reserves the following terms exclusively for milk products: whey, cream, butter, buttermilk etc. (the list contains 16 products traditionally produced using milk).
A strict interpretation of article 78.1 in combination with article 78.2 and Annex VII part III of the CAP Regulation would mean that the term ‘milk’ should only be used for milk products from animal origin. The norm does not contain an exception for plant-based alternatives. However, it is unclear whether milk can be used if it is combined with an explicit mention of the plant-based origin of the product such as soy. It can be argued that the Alternatives do not qualify as ‘milk’, and that, therefore, the Regulation does not apply to Alternatives. This precise issue is currently the subject of a the Tofutown case pending at the ECJ (C-442/16).
The Tofutown case
Tofu is made from soya beans. The German company TofuTown.com sells alternatives to butter and cheese from mammalian origin. The company markets their Tofucheese and Tofubutter as plant-based alternative to the traditional cheese and butter. Neither products contain any ‘milk’, and are marketed towards vegetarians and/or vegans who prefer plant-based alternatives for cheese and butter. The Verband Sozialer Wettbewerb (German Competition Authority) objected to the use of the words ‘butter’ and ‘cheese’ in the tofu products because, in their view, tofutown.com did not comply with the CAP Regulation as the products were not milk-based. The German court requested the answering of preliminary questions by the Court of Justice of the European Union on the interpretation of the above-mentioned rules regarding the product names. The following prejudicial questions were put forward:
- Can Article 78(2) of the CAP Regulation be interpreted as meaning that the definitions, designations and sales descriptions defined in its Annex VII need not satisfy the relevant requirements of this Annex if the relevant definitions, designations and sales descriptions are expanded upon by clarifying or descriptive additions (such as ‘tofubutter’ for a pure plant-based product)?
- Is Annex VII, Part III, point 1, to the CAP Regulation to be interpreted as meaning that the expression ‘milk’ is exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom, or may the expression ‘milk’ — where necessary with the addition of explanatory terms such as ‘soya-milk’ — also be used in the marketing of plant-based (vegan) products?
- Is Annex VII, Part III, point 2, to the CAP Regulation, in conjunction with Article 78, to be interpreted as meaning that the descriptions listed in detail in point 2(a), such as, in particular, ‘whey’, ‘cream’, ‘butter’, ‘buttermilk’, ‘cheese’, ‘yoghurt’ or the term ‘cream’ etc., are reserved exclusively for milk products, or can pure plant-based/vegan products, which are produced without (animal) milk, also fall within the scope of Annex VII, Part III, point 2, to the CAP Regulation?
One of the core principles of food law, besides safety, is the principle that foodstuffs shall not mislead consumers. This ‘misleading argument’ is the main argument used by the dairy lobby in the US to justify the restriction of the use of the term ‘milk’ solely for milk from cows or other animals. We share the view of the Good food institute that the names would be misleading is not acceptable. No consumer is misled when buying an alternative plant based product such as ‘soy milk’, because the products are clearly marketed as alternative and the origin is mentioned in the product name and on the front of the pack, as well as in the legal name. However, we are of the opinion that labeling of these Alternatives should never be similar to traditional milk products, or carry pictures of cows or other animals that provide milk.
Precursor to bigger debate on plant-based alternatives
Milk is not the only product definition under scrutiny; the discussion is already spreading to meat products. Traditional food producers feel the heat from competitors producing Alternatives for their products. These Alternatives are not only suitable for vegetarians and vegans, but also for the mainstream consumer who could be concerned with the environmental impact of meat or perhaps is lactose intolerant. The Alternatives are plenty and range from the use of soy to algae or even insects to replace the traditional product. Many Alternatives have not only animal welfare in mind, but also sustainability.
In the Netherlands the Vegetarian Butcher made headlines, because he used terms reserved for meat products for his vegetarian alternatives. Instead of waiting for a court to rule on the matter, the vegetarian butcher chose to change his terms slightly to avoid being penalized for using the wrong terms. To give an example, “gehakt” (mincemeat) became “gehacked”, which, in Dutch sounds the same, but formally has a different definition. The Vegetarian Butcher also published a statement on YouTube to clarify why he changed the product names. Perhaps this could be the solution for producers of alternatives for traditional animal derived products, in case the ruling of the CJEU is in favor of the traditional producers. Another idea would be to introduce the term ‘malk’ (‘a’ is derived from plant); ‘milk’ or milk products produced using plant-based sources.
A debate is ongoing in the US regarding the definition of milk and whether plant-based alternatives can use the term ‘milk’ to describe their products. In the EU, the definition is already part of a Regulation, which forbids the use of the term ‘milk’ in other products than milk of animal origin. The Tofutown case will hopefully clarify if producers of Alternatives will be able to use terms such as milk, which are traditionally linked to products from animal origin, if the producer mentions the source of the milk together with the term ‘milk’. We have seen this debate is not limited to ‘milk’, but also includes other products for which non-animal alternatives are available and marketing standards such as the CAP Regulation apply to. We will keep you posted on developments in the debate on definitions of Alternatives. Please do not hesitate to share your view on this topic with us!
In the beginning of the new calendar year, people tend to stick to new year’s resolutions, such as eating healthier. In supermarkets and other stores choosing healthy/ sustainable products is made easy by means of certification. Certification, mostly in the form of a logo or picture, is a way of branding your product to stand out from your competitors. However, certification options are so broad that consumers have to spend a great deal of time to familiarize themselves with all the available certifications to make an informed choice. To enable the consumer to make an informed choice, the Dutch organization Milieu Centraal (a Dutch public information body on environment and sustainability) published a certification overview on their site, including an app (further keurmerkenwijzer). The keurmerkenwijzer provides an overview of all available certifications (not limited to food) and a ranking of the different organizations responsible for the certification. This blogpost will elaborate on certification in general and recent developments on the national Dutch certification regarding food, including the healthy choice (ik kies bewust) logo. This blog also includes elaboration on two separate apps, the abovementioned keurmerkenwijzer and the EtiketWijzer, which was presented at the Dutch food top 2017 as the replacement for the national certification.
Logo / certification
What is certification? The owner of a certification scheme has a set of rules commonly referred to as private standards, which the owner or a third party enforces. Private standards are voluntary rules, as opposed to national legal norms, which are binding. Food business operators (further: FBOs) can comply with these standards and in return (if they comply) are enabled to use the logo corresponding to those standards. The certification owner owns the logo as well as the standard; usually, the producer pays a fee to the certification owner to use the logo corresponding to the standard. If a FBO complies with a private standard it does not automatically mean the FBO complies with all legal requirements set in national or international law. However, private standards have the tendency to be stricter than national/ international law, and can even encompass rules, which are not part of the national and international law applicable on FBOs.
Scope and enforcement of private standards
Private standards are not limited by geographical area or jurisdiction. This is the reason private standards are used in third countries to ‘up’ the legal standards for the producers in third countries. Private standards contain enforcement measures, often in the form of high fines or exclusion from the private standard. In this way a separate enforcement mechanism is created to enable the certification owner to enforce in case of non-compliance without the interference of the national public enforcement in that particular country. In other words, private standards are a mean to privately enforce (stricter) standards in the food sector.
Certification schemes are private or semi-private initiatives to enable consumers to see in one view, which products comply with the corresponding standards. Standards can be focused on sustainability, working conditions, animal welfare, or other elements of the production of the product. Even for package material certification schemes are available. FBO’s who bring foodstuffs to the market want to communicate through the use of certification. The incentive for FBOs to use certification on their foodstuff is to persuade consumers to purchase their product.
A potential problem for FBOs using certification is the proliferation of certification schemes; the number of certification schemes has increased over the years and at this point, over 200 certification schemes exist which focus on sustainability. Research published in 2015 by Milieu Centraal and in 2016 by The Netherlands Authority for Consumers and Markets (ACM) both linked the diminished trust in certification schemes to the large number of available schemes.
To enable consumers to quickly find the information on certification schemes in general and more information on all individual certifications, including a rating of the schemes, the keurmerkenwijzer was launched by Milieu Centraal. The keurmerkenwijzer provides an overview of all available certification schemes (which focus on sustainability) and provides information to the consumers on the following aspects; environment, animal welfare, social, control and transparency. Because of the wide variety of certification schemes, the State Secretary for Economic Affairs was tasked to find a way to guide consumers in the ‘jungle of certification schemes’, to work towards a more sustainable food consumption. The keurmerkenwijzer is the presented solution to the proliferation of certification schemes.
Heathy choice logo
The Dutch national certification scheme for foodstuffs is the healthy choice logo (het vinkje), which used to be owned by the foundation ‘I make a conscious choice’ (stichting ik kies bewust). There are two separate logos, a green and a blue checkmark. The green is the healthy choice, meaning the product is part of the recommended dietary guidelines as provided by the Health Council of the Netherlands (Gezondheidsraad). The blue logo is the conscious choice, meaning that the product is not taken up in the dietary guidelines, but compared to reference products are healthier than the benchmark product; for instance, the product contains low amounts of salt and saturated fats compared to benchmark foodstuffs. The national legal basis can be found in article 11 of the Commodities Act Decree on food information. In short, the certification has to be well recognized by consumers (they know what it stands for) and the standards should be based on science.
Criticism Healthy Choice logo
A compliant and recognized national (or even Europe-wide) certification could be the solution for consumers to make an informed choice. However, the national certification met resistance from consumer organizations. The resistance against the certification led to the filing of a formal complaint (the link provides the full complaint) by the consumer organization (Consumentenbond). The conscious choice logo was considered non-compliant and misleading. In short, both logos were not as well-known to consumers and the scientific substantiation of the certification is lacking, and thus were not in compliance with the abovementioned national law. The foundation symbolically transferred both logos and the best in class criterion (developed by the foundation) to the minister as a result. The foundation will remain in business until all products containing the logo are no longer on the shelves. However, the foundation will be downsized in the course of 2017. The secretary and the website will remain in business as long as the logo’s are still used on products.
Instead of a new or ‘improved’ national certification scheme, the decision was taken to develop an app for consumers replacing the certification scheme with an app to make healthier choices in food. Currently, the app (EtiketWijzer) is being developed (test phase) by the Netherlands Nutrition Centre (voedingscentrum). The EtiketWijzer focuses on the information on the foodstuff as such, instead of the certification schemes. Albert Heijn, Jumbo and Superunie, are involved in testing the app. The app currently, only works on certain private brands and premium brand products. By the end of 2017 a version for consumers should be available. The aim of the app is to encompass all foodstuffs (of the retailers participating), available in the final version.
The available certification schemes and corresponding logos are many, because of this ‘jungle’ of available certification schemes consumers lose trust in the available schemes. The app developed by Milieu Centraal enables consumers to get informed easily on all available certification schemes and to rate them. Assuming the number of certification schemes will not diminish drastically, the keurmerkenwijzer could be a helpful tool for consumers to make an informed choice. An option to clear the jungle would be to use a Europe-wide certification scheme. However, developing an app to inform the consumers is in our opinion fighting the symptoms, not the root of the problem; the proliferation of the certification schemes.
The EtiketWijzer potentially covers all foodstuffs, regardless of certification. However, the app is under development and should encompass all available foodstuffs to provide full information on healthy foodstuffs. Perhaps the keurmerkenwijzer could be integrated into the EtiketWijzer to ensure consumers are enabled to quickly access all information on both healthiness and sustainability of the foodstuffs without a proliferation of apps.
The author thanks Floris Kets for his contribution to this post.
On 24 September 2014 our firm organizes a seminar addressing the developments in Functional and Medical Foods. Where? Next door to our office in Pakhuis de Zwijger.
The Institute of Medicine has designated functional food as “any food or food ingredient that provides a health benefit beyond its nutritional benefit”. Functional foods comprise food supplements, probiotics and other foods having a beneficial effect on human health, which is often advertised by health or nutrition claims as using those claims in connection with this type of foods is very attractive from a marketing point of view.
Functional foods are just one step away from medical foods, catering for particular nutritional needs that regular foods do not supply. Contrary to functional foods, medical foods are highly regulated. Furthermore, both types of food are subject to specific legislation regarding health and nutrition claims as well as regarding food information to be provided to consumers.
The regulatory requirements for health and nutrition claims offer a chance and a challenge. Also, as of 13 December 2014, all food business operators have to comply with very strict, new information requirements on the basis of the Regulation on Food Information to Consumers. To what extent does this regulation help the final consumer to make healthy choices and how does this impact the entrepeneur? Our seminar will address these issues and provides practical guidance on solutions. Speakers are: Bernd Mussler (Innovation Project Manager at DSM), Ruud Albers (CEO at Nutrileads) and us (Karin Verzijden and Sofie van der Meulen).
A few spots left!
We still have a few spots left! Attendance is free and you are welcome to bring along your colleagues. More info? Check the invitation on our website. For registration, please send an e-mail to email@example.com with your name, the names of colleagues you would like to register and contact information. Questions? Contact our office manager Marjon Kuijs at firstname.lastname@example.org or +31 (0) 88 650 6500.
Looking forward to see you there!
Missed our seminar? Download our slides!