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.
Nothing left to hide? Status quo on Dutch bill permitting active disclosure of food safety inspection resultsPosted: November 9, 2016
Recently, an amendment to the Dutch Health Act (Gezondheidswet) was voted in Dutch Parliament, allowing the Dutch Food Safety Authority (Nederlandse Voedsel en Warenautoriteit or NVWA) to actively disclose its inspection results. The change in the Health Act equally applies to inspection results obtained by the Dutch Health Inspectorate (Inspectie Gezondheidszorg or IGZ) and therefore, it received broad interest from the pharmaceutical, medical devices, and the food industry and their legal practitioners. Three meetings on this topics were organised by respectively the Dutch association of Food Law (NVLR), the Dutch Pharmaceutical Law Association (VFenR) and by the Dutch organisation for food retail and management VMT. This post will put you up to speed on the actual changes to be applied to the Health Act, as well as on the expected consequences of their implementation for food business operators (FBOs).
Importance of inspection results
Inspection results are important for whom it concerns directly (inspected companies, as they provide answers to questions such as: is your organisation compliant? Will a fine be imposed? Inspection results are furthermore of interest to others, such as consumers, journalists and other companies, including competitors, for a number of reasons. These reasons include (but are not limited to) knowing where to supply from and what places to avoid, the possibility to check if your supplier’s manufacturing processes are up to standards and the option to stay informed on what challenges your competitor is meeting.
Active vs. passive disclosure
All administrative bodies disclose information, on their website, in social media, in leaflets, etc. Under the Dutch Act on Public Access to Government Information (Wet openbaarheid van bestuur or WOB) citizens have the right to file a request for information on administrative matters. The disclosure of such information on request of a person is called passive disclosure. Such disclosure does not take place publicly, but the information concerned will solely be provided to the person who filed the request, unless it is rejected based on the limited grounds specified in the WOB. Active disclosure on the other hand means that the information is disclosed by an administrative body prior to any request for information. Such information is publicly available after disclosure. In case of inspection results of the NVWA, these will most likely be published on the website this administrative body.
Rationale disclosure inspection results
The rationale for both passive and active disclosure of inspection results is threefold.
(i) Transparency. Without information on the inspection, one cannot assess the quality of the inspection or view the results of the inspection. This transparency is also present in other areas such as inspection results of the Inspectorate of Education and the Health Care Inspectorate.
(ii) Trust. By showing the results, the public can see what the NVWA is doing and therefore the public can build trust in the NVWA.
(iii) Increased compliance. Negative results of an inspection can lead to serious problems towards consumers or customers, such as liability claims from suppliers who expected to be supplied with products produced in compliance with the applicable quality standards and hygiene regulations). In this way active disclosure increases the pressure on FBOs to comply.
The current system
Opposed to other inspectorates in the Netherlands, the active disclosure by the NVWA is currently not provided for in a specific Act. So far, the mechanism laid down in the WOB has been used as the framework for disclosure of inspection results. Article 8 WOB enables the NVWA to actively disclose information, provided this is done is a clearly understandable way and offering interested parties in due time the opportunity to comment. As far as a request for information by any company or citizen is concerned, there are predefined grounds on which an administrative body cannot freely disclose information, being absolute and relative grounds. The absolute grounds are found to be of such importance that publication is interdicted, like confidential commercial information relating to the safety of the state or information containing personal data. The relative grounds relate for instance to privacy matters or to disproportional harm that could be created by publication. Such grounds have to be weighed against the interests of disclosure. In the current framework, the interested party can express a provisional opinion with respect to any intended publication by NVWA, which has to be dealt with before publication. This mechanism will disappear under the new system.
The new system
When the amendment of the Health Act will enter into force, the NVWA will not only have the option to actively disclose information, but will be obliged to do so. In the legal framework, the assessment of interests is already taken into account, which makes it unnecessary to do another assessment each time the NVWA decides to actively disclose information. In future, the option to express a provisional opinion by the NVWA will no longer be available. The only way to ensure that the information is not disclosed is starting summary proceedings before a civil court. If any interested party is doing so, NVWA will then be forced to suspend its decision to disclose information until the court decides on the matter. In case the NVWA will disclose the inspection report, the NVWA will provide the option for FBOs to provide a reaction to the inspection results, which will be disclosed together with the inspection results. In addition to the change applied to the Health Act, an underlying decree needs to specify more detailed rules on what information exactly needs to be published in what format. In the discussions on the amendment of the Health Act another amendment was added which ensures the underlying decree can only be amended with the approval of Dutch Parliament.
Current status of the amendment
On the 11th of October the House of Representatives of the Netherlands (Tweede Kamer) accepted the proposed changes to the Health Act and amended some parts. The Dutch Senate (Eerste Kamer) accepted the amendments without making any additional amendments on the 1th of November. However, the change of the Health Act has not yet entered into force and it is currently still unclear when the exact date of entry into force will be. Guestimates are hinting at June 2017, however the Ministry of Health Welfare and Sport is still working on the underlying decree on what information has to be published and in what format. There is a fair chance the amendment will only enter into force simultaneously with this underlying decree. In such case the entry into force of the changes to the Health Act will most likely be later than the guestimate mentioned above.
Situation in other EU countries and NVWA pilot
Other EU Member States already have a system of active disclosure of inspection results for restaurants in using a system of easily understandable designations or colours (Denmark and Ireland for instance). In those countries, the outcome of the inspection is presented at the entrance of the inspected restaurant, in order to give the public an overview of the level of compliance at first glance. For instance, a green colour or a happy face means that the restaurant is compliant and colours closer to red or a less happy face mean the place was less compliant. In the Netherlands, the NVWA launched a pilot for disclosure of inspection results for lunchrooms, which were disclosed via an app. This app subsequently displayed the results on a map. The map showed the lunchrooms in four different colours, depending on the level of compliance. The idea was to provide a quick overview of the lunchrooms and the level of compliance. However, the reaction of the minister of Health, Welfare and Sport to this format was negative due to interpretation issues, particularly interpretation of the colours. There are also lists of inspected products instead of inspected FBOs. The experience gained therewith and during the pilot will have to be evaluated in order to choose an acceptable form for the disclosure of over 200.000 inspections done each year in the Netherlands by the NVWA.
The proposed changes to the Health Act have been much criticised. The active disclosure of the inspection results together with the imposed sanctions can be viewed as punitive sanction in addition to the sanction itself imposed based on the findings during the inspection. In the explanatory notes on the amendment of the Health Act, the government explains that active disclosure should not be perceived as a punitive sanction and therefore not a criminal charge in the sense of Art. 6 ECHR. In case the disclosure will be viewed as a punitive sanction, article 6 ECHR will be applicable, meaning the procedural safeguards embodied in this article will apply. Basically, the government states that the disclosure does not aim at punishing the inspected party, and therefore is not an additional sanction. However, the arguments provided by the government in the explanatory notes are not very convincing. Assuming the disclosure will lead to more transparency, consumers and customers will be aware of the non-compliance due to the disclosure. This disclosure can in turn decrease the trust in the non-compliant producer, which could mean a decline in sales or even liability claims from consumers or customers. It is not the fines imposed by the NVWA, but the disclosure of the inspection results, which leads to these (potential) damages of the producer, whom will not have had the chance to remedy the situation before it is out in the open. This is all the more important, as so far there is no evidence that such public disclosure indeed will lead to an increased level of compliance. Moreover, this situation does not seem to be in line with competition law, which constitutes the regular level playing field of any FBO, just like it is for manufacturers of medical devices or medicinal products. Therefore, competition law elements should in our opinion be an aspect of the legislation concerning disclosure. In the explanatory notes to the amendment, this aspect has not even been mentioned.
As a result of a change applied to the Dutch Health Act, the first steps towards active disclosure of inspection results from the NVWA have been initiated. The actual implementation thereof depends on the underlying decree, which is still under construction. This is why is not clear as of when the legal basis for active disclosure of NVWA inspection results will be operational. As of this moment however, FBOs will be subject to increased enforcement measures, without the effect thereof being necessarily positive. We will keep an eye out for you and report on any relevant development in this field, as they are likely to have an important impact for each FBO.
The author thanks Floris Kets for his contribution to this post.