RAC member Dr Jeanette Rowley unpacks the vegan dairy alternative product labelling issue.
Dr Jeanette Rowley
1. Introduction
Earlier this year, news reports emerged that a United Kingdom (UK) Food Standards and Information Focus Group (FSIFG) drafted an enforcement opinion on the use of dairy descriptors used by the vegan and plant-based food manufacturing sector. This is perhaps not surprising, given the explosion of vegan dairy replacement food products, historical and current law, and the decision in the TofuTown case of 2017, which confirmed that vegan food producers’ use of ‘dairy type’ words, such as “milk”, “cream”, “butter” and “yoghurt”, is unlawful. The legal definition of “milk” is secretions from milking primarily bovine animals, and while secretions from other animals are permissible with appropriate labelling, “milk” whey, cream, butter, cheese and yogurt cannot, in principle, be lawfully used to designate a purely plant-based product. The TofuTown case confirmed that the term ‘milk’ and the designations reserved exclusively for milk products cannot be lawfully used to designate a purely plant-based product unless that product appears on the list of food items acknowledged in the legislation as traditionally being referred to by a dairy type word: for example, “cream cracker” or “peanut butter”.
This article offers elementary insights into the legal context for the issues raised by news reports and food enforcement bodies, highlights the historical political nature of the dairy sector’s lawful claim on the use of words such as “milk”, “cream” and “yoghurt”, and suggests ideas for discussion to support the vegan dairy alternative food sector.
It should first be pointed out that there is no legally binding definition of ‘vegan’ for food law purposes. The European Vegetarian Union EVU correctly points out that the EU has the power to draft regulations to protect vegan consumers and, referencing The Vegan Society’s definition of veganism, promotes a pragmatic approach to establishing a legal definition of ‘vegan’ food. Currently, food producers provide information to vegans on food labels on a voluntary basis, but have a legal duty not to mislead consumers.
2. The ‘problem’
Vegan and plant-based food manufacturers try to comply with the prohibition on the use of dairy descriptors by describing their plant-based milk alternatives as “not milk”, or misspell the word “milk” by using “creamy mylk” or “oat m’lk”. The use of descriptors, such as “cheese alternative”, “cheddar style” or “replacement for cheese”, are also examples of issues under food regulations.
The news reports claim that the Food Standards and Information Focus Group has unfairly targeted the labelling culture of plant-based food producers and that proposed enforcement guidance, if implemented, threatens to hurt consumers and British businesses, and negatively impact healthy eating and the plant-based food sector’s positive contribution to a healthy environment. On the other hand, the FSIFG wants to understand and accurately represent the current law. It should be noted at this point that there are different views and interpretations of the law and only a court can decide if there has been a breach of the food regulations.
The following section outlines current food naming law.
3. General principles of food information law
Article 3 of Regulation (EU) 1169/2011 (UK) provides that “[i]n order to achieve a high level of health protection for consumers and to guarantee their right to information, it should be ensured that consumers are appropriately informed as regards the food they consume. Consumers’ choices can be influenced by, inter alia, health, economic, environmental, social and ethical considerations.”
Article 4 promotes the general principle of food law “to provide a basis for consumers to make informed choices in relation to food they consume and to prevent any practices that may mislead the consumer.”
Article 3(1) gives the ‘general objective’ of food information rules. “The provision of food information shall pursue a high level of protection of consumers’ health and interests by providing a basis for final consumers to make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations.”
4. Voluntary food labelling
Voluntary labelling, including vegan food products explicitly, is dealt with in Chapter 5, Article 36 of the Regulation:
Article 36
2. Food information provided on a voluntary basis shall meet the following requirements:
(a) it shall not mislead the consumer, as referred to in Article 7;
(b) it shall not be ambiguous or confusing for the consumer; and
(c) it shall, where appropriate, be based on the relevant scientific data.
4.1 The Commission’s recognition of the needs of the vegan community
Article 36(3) highlights that the EU Commission is aware that vegan consumers need adequate and appropriate food information and consumer protection:
The Commission shall adopt implementing acts on the application of the requirements referred to in paragraph 2 of this Article to the following voluntary food information:
b) information related to suitability of a food for vegetarians or vegans
The Commission has not yet adopted any specific regulations concerning labelling vegan food.
4.2 Fair information practices
Article 36(2)(a) and (b) (see 4 above), instruct food producers that if they apply a vegan label voluntarily it must not mislead the consumer, be ambiguous or cause consumers confusion. Article 7 sets out the fair information practices to explain how voluntary labelling can avoid being misleading. The requirements are as follows:
Article 7
7(1) Food information shall not be misleading, particularly:
(a) as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production;
(b) by attributing to the food effects or properties which it does not possess;
(c) by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients;
(d) by suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient.
Article 7(2) requires that food information shall be accurate, clear and easy to understand for the consumer.
Article 7(4) indicates that food information rules are also applicable to:
(a) advertising;
(b) the presentation of foods, in particular their shape, appearance or packaging, the packaging materials used, the way in which they are arranged and the setting in they are displayed.
5. The name of the food
Article 17 focuses on regulations for naming the food product:
17(1) The name of the food shall be its legal name. In the absence of such a name, the name of the food shall be its customary name, or, if there is no customary name or the customary name is not used, a descriptive name of the food shall be provided.
17(4) The name of the food shall not be replaced with a name protected as intellectual property, brand name or fancy name.
The definitions for naming food are found in Article 2(2) and are as follows:
(n) ‘legal name’ means the name of a food prescribed in the Union provisions applicable to it or, in the absence of such Union provisions, the name provided for in the laws, regulations and administrative provisions applicable in the Member State in which the food is sold to the final consumer or to mass caterers;
(o) ‘customary name’ means a name which is accepted as the name of the food by consumers in the Member State in which that food is sold, without that name needing further explanation;
(p) ‘descriptive name’ means a name providing a description of the food, and if necessary of its use, which is sufficiently clear to enable consumers to know its true nature and distinguish it from other products with which it might be confused;
6. Legal protection for dairy descriptors
Regulation (EU) No 1308/2013 replaces prior Council Regulations and restates the legal meaning of milk entrenched in law since at least as far back as 1971. Under Council Regulation (EEC) No 1411/71 “milk” was defined in law as “the milk-yield of one or more cows”. In 1987, Article 2(1) of Council Regulation (EEC) No 1898/87 on the protection of designations used in marketing of milk and milk products”, states that “the term 'milk' shall mean exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom”. This legal definition remains in use as stated in Part III. (1) of the 2013 Regulation: “"Milk" means exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom.” However, there are circumstances in which “milk” means “the produce of the milking of one or more cows” (See Regulation (EU) No 1308/2013 Annex VII Part IV).
Part III (2) of the 2013 Regulation lists the words that are reserved exclusively for milk products, in all stages of marketing: (i) whey, (ii) cream, (iii) butter, (iv) buttermilk, (v) butteroil, (vi) caseins, (vii) anhydrous milk fat (AMF), (viii) cheese, (ix) yogurt, (x) kephir, (xi) koumiss, (xii) viili/fil, (xiii) smetana, (xiv) fil; (xv) rjaženka, (xvi) rūgušpiens. Prohibition on the use of these words can also be found in 1987 legislation. It is prohibited to use these designations for non-reserved products. However, this rule does not apply to the designation of products, the exact nature of which is clear from traditional usage and/or when the designations are clearly used to describe a characteristic quality of the product.
With regard to these reserved products, current and historical legislation also states that “no label, commercial document, publicity material or any form of advertising… or any form of presentation, may be used which claims, implies or suggests that the product is a dairy product.”
7. Permitted products with traditional names
Products traditionally referred to by way of a reserved designation in the UK are recognised by the Commission in Commission Decision 88/556/EEC of 28 October 1988 . The list in current use and cited in case law can be found in Annex I to Commission Decision 2010/791. It should be noted that all Member States can submit a list of words recognised as being in traditional use and translation issues have arisen. However, the list of words presented by the UK and incorporated into legislation is as follows:
Coconut milk ´Cream . . .' or ´Milk . . .' used in the description of a spirituous beverage not containing milk or other milk products or milk or milk product imitations (e.g. cream sherry, milk sherry), Cream soda, Cream filled biscuits (e.g. custard cream, bourbon cream, raspberry cream biscuits, strawberry cream, etc.), Cream filled sweets or chocolates (e.g. peppermint cream, raspberry cream, crème egg), Cream crackers, Salad cream, Creamed coconut and other similar fruit, nut and vegetable products where the term ´creamed' describes the characteristic texture of the product, Cream of tartar, Cream or creamed soups (e.g. cream of tomato soup, cream of celery, cream of chicken, etc.), Horseradish cream, Ice-cream, Jelly cream, Table cream, Cocoa butter, Shea butter, Nut butters (e.g. peanut butter), Butter beans, Butter puffs, Fruit cheese (e.g. lemon cheese, damson cheese).
Former assessment guidance stated that:
[f]or a non-dairy product to use a dairy designation it must be clear to the average consumer that the product is not a dairy product and cannot be confused with a dairy product, e.g. soya milk does not qualify because it may be mistaken for a dairy product and therefore competes directly with cows’ milk.
8. Comment
The outline above shows that food law comprises of a complex set of regulations, and the growth of the plant-based food sector has quite likely created nothing short of a nightmare for food enforcement bodies and for providing assured advice. It is no surprise, therefore, if regional Trading Standards Officers raise issues and questions relating to the meaning and application of current food labelling regulations, or that the complications raised have been addressed by a food standards focus group.
The Food Standards Agency (the FSA) has previously stated that “[t]he restrictions cover labelling, presentation and advertising” and that “[t]here is also a general prohibition on direct or indirect suggestion of a dairy connection.” It does not come as a surprise, therefore, that that the use of misspelled words, such as “Mylk”, or the use of “Not Milk” to describe a plant-based milk alternative is deemed, in principle, unlawful on the basis of historical and current law. The FSA also previously indicated, however, that the ‘[u]se of dairy terms to clearly and unambiguously describe a ‘non-dairy’ product as ‘non-dairy’ is acceptable” and example being
“non-dairy alternative to cheese”.
It is unlikely that a reserved customary name used to describe a vegan product, such as “cheddar”, would be accepted as lawful.
The provision of food information exists to provide clear and unambiguous, information to protect consumers from confusion. Despite the Commission recognising the needs of vegan consumers and having the power to adopt supporting legislation, it has not yet adopted any Regulations that serve the vegan community’s needs for specific labelling that helps them make informed, ethical choices. At the same time, the current regulations prohibit the necessary and appropriate information vegan consumers need. In the absence of specific Regulations that cater to the needs of vegan consumers, the use of homophones and relevant images help vegans make informed choices based on their ethical and environmental considerations, which is what the food regulations, overall, intend to achieve. Notwithstanding that there is a legal duty to correctly apply the rules. Plant-based food producers demand a fair interpretation of the rules based on their business needs and the needs of their consumers, consumers who are trying to make easy, ethical and environmental food choices in an outdated and hostile legislative landscape.
9. The reason for the rules and reserved terms
The idea that the average consumer might be misled by labelling on competing alternative dairy products is as historical as the legislation itself. However, the dairy sector’s issue with the plant-based sector is arguably not that they worry that consumers are misled and confused by the pant-based sector’s use of ‘dairy type’ descriptors, but that they demand legal protection for their historical (but declining) economic advantage. Historical measures to give the dairy sector an economic advantage through legal protection are clear from the preamble to Council Regulation (EEC) No 1898/87 of 2 July 1987 on the protection of designations used in marketing of milk and milk products. It notes the following:
- …the situation of the milk and milk products sector is characterized by structural surpluses and the disposal of these products should therefore be improved by promoting their consumption…
- …the natural composition of milk and milk products should be protected in the interests of Community producers and consumers, and regulations which ensure appropriate labelling and prevent the consumer from being misled will help this objective to be achieved
- milk and milk products should, therefore, be defined and the designations needing to be reserved for them should be clarified
- Regulation aims at protecting the consumer and at establishing conditions of competition between milk products and competing products in the field of product designation, labelling and advertising which avoid any distortion
- …competing products enjoy a competitive advantage in terms of production cost due to the fact that many of them are frequently manufactured from raw materials imported at zero duty rates, whereas milk products have a higher production cost which is dictated by the need to safeguard agricultural producer incomes
- …it is essential for the Commission to follow closely developments in the market for milk products and competing substitute products and to report back to the Council
- …Member States take measures to “curb the manufacture and marketing of these products on their territory…
10. Soya milk
Regulation 1898/87 prohibiting the use of dairy descriptor for what was referred to as “competing substitute products” had direct effect across the EU. However, the UK appears to have argued from 1988 to 1994 that “soya milk” was a description of a non-dairy product in traditional use. Soya milk appears to have a long history and, apparently, in 1987, soya milk… had been on sale in the UK for over 30 years. The Commission allegedly refused to add “soya milk” to the list of words in traditional use and began legal proceedings to take the UK to the European Court of Justice for non-compliance with the Regulation. In response, the UK implemented the Regulation and the legal action was not progressed. However, the UK did not enforce the rules in practice so, a new legal action commenced. A brief account of the situation is given in Soya Milk Saga by Arthur Ling, Vegan Views 69 (Summer 1995):
Mark Watts (MEP for East Kent) in conjunction with Arthur Ling of Plamil (the Folkestone soya milk manufacturer), has been working on the case and in February convened a seminar of the 87 UK MEPs to brief them in the matter. As a result of that seminar, over 70 UK MEPs representing 50 million UK citizens, signed a petition requesting that the Commission's Agricultural Commissioner withdraws the threat of taking the UK Government to Court. This petition was presented to the Commissioner on 11 July, with a delegation of MEPs led by Mark Watts, Dr. Caroline Jackson (MEP for Wiltshire), David Hallam (Shropshire) and Robert Sturdy (Cambridgeshire), accompanied by John Moyes of Vandermoortele, London and Arthur Ling (representing the industry).
Inside the Commissioner's room in the Euro Parliament in Strasbourg, there was a frank interchange of views between the Commissioner and members of the delegation, and after a lengthy discussion, the Commissioner, eventually, volunteered to reconsider the issue and accepted that the delegation had put points to him of which he was previously unaware.
The European Commission is seeking to force the UK to ban the term 'soya milk' because an EU committee of civil servants doubts that the consumers can tell the difference with cow's milk. Soya Milk has been on sale in the UK for over 30 years; it is bought precisely because they know what it is.
Even the National Dairy Council questions the argument that consumers could be confused between soya and cow's milk. A spokesperson commented "We think the consumer is a bit brighter than that".
Dr. Caroline Jackson says: "This dispute has been blown out of all proportion. The Commission says it's OK to sell all sorts of things like 'almond milk' - but not 'soya milk'. The Commission must be consistent".
Stephen Crompton of the 'Consumers in Europe' Group says: "We are unaware of any evidence that UK consumers have been misled into believing that soya milk is a dairy product. We believe that the name 'soya milk' is well established and that calling it something else will cause confusion".
In Parliament, Lord Tebbit asked Her Majesty's Government:
whether it is their view, that upon the merits of the case the term "soya milk" should be prohibited or whether the prohibition which they intend to make has been forced upon them by a decree of the European Commission.
Lord Lucas stated:
The proposed change of name for the product "soya milk" is one which has had to be taken to comply with Community legislation. In 1987 the Community adopted legislation prohibiting the use of dairy terms such as milk on non-dairy products. A list of products exempt from this requirement was adopted in 1988. Her Majesty's Government argued then, unsuccessfully, that "soya milk" should be on this exempt list. Since 1988 there has been protracted correspondence between the Commission and Her Majesty's Government about the exact status in the United Kingdom of the term "soya milk". In June 1994, at the request of Her Majesty's Government, the issue was discussed by the Community committee designated to consider such issues. It overwhelmingly supported the Commission's proposal that "soya milk" should not be added to the list of exempt products. Her Majesty's Government are in discussion with the soya milk manufacturers about the practical arrangements necessary to change the names of the products involved.
11. The future
The plant-based dairy alternative sector has thrived despite the official obstacles, but enforcement guidance would arguably have a significant negative impact on existing businesses. It would also, arguably, cause a lot of confusion for vegan consumers who would potentially need to search on packaging for helpful guidance about how they might use a product. “Cashew cheese” is immediately recognisable to vegans as a likely dairy cheese alternative, but “Vegan block” perhaps wouldn’t indicate that the product can be used in the same way as dairy cheese.
11.1 Relying on evidence
Campaigners are right to emphasise, and provide evidence, that consumers are not misled nor confused by existing vegan food labels. They should also draw attention to the fact they are necessary for vegan consumers to make informed ethical and environmental food choices, which is a long-established general objective of food information law.
11.2 Decisions in recent cases
Although case law has confirmed that the term ‘milk’ and the designations reserved exclusively for milk products cannot be lawfully used to designate a purely plant-based product unless that product is traditional, there may be hope. A German case shows that the use of the word “alternative”, as in “cheese alternative”, is acceptable and a Canadian case shows that the use of “non-dairy” is adequate to avoid any alleged confusion. These cases do not authorise UK plant-based food providers to breach the current rules, nor do they remove the legal duty on UK food authorities to enforce the current rules.
11.3 Trademarks that set off a ‘cognitive process’
Dairy alternative food producers could also consider using trademarks that ‘set off a cognitive process’. In 2021, Oatly (plant milk producer) won a legal battle to register its slogan “IT’S LIKE MILK, BUT MADE FOR HUMANS” as an EU trademark. In this case, the court had to decide whether or not the trademark applied for had a distinctive character, as required under Article 7(1)(b) of Regulation (EU) 2017/1001. A distinctive character is assessed by ‘reference to the goods or services in respect of which registration has been applied for and, secondly, by reference to the relevant public’s perception of the mark…’. To have a distinctive character, a proposed trademark must do more than promote a product. In an earlier stage of this case, the Board of Appeal found that:
…the first part of the mark (‘it’s like milk’) would be perceived as indicating that the goods marketed consisted of or contained milk substitutes which were like ‘real’ milk and that the second part of that mark (‘but made for humans’) would be perceived as indicating that they were more apt for human consumption than ‘real’ milk or goods containing ‘real’ milk.
And that the trademark would be understood as a “laudatory promotional slogan”.
However, the judges presiding over the case at the final stage at the General Court, stated that the trademark applied for “calls into question the commonly accepted idea that milk is a key element of the human diet” and “conveys a message which is capable of setting off a cognitive process….” (relating to the fact that dairy milk is not made for humans but is for calves). The court found that the trademark calls into question that perception of milk as being essential to a human diet and, for that reason, is capable of setting off a cognitive process which is such as to confer distinctive character on that mark. The trademark applied for was held to meet the requirements of Article 7(1)(b) of Regulation 2017/1001, and Oatly won its legal battle.
11.5 Mechanisms for creating new law
Campaigners lobbying for changes to EU law could also consider the utility of Article 78(3) of the 2013 Regulation which empowers the Commission to adopt delegated acts concerning the modifications, derogations or exemptions to definitions and sales descriptions. Any acts will be strictly limited to demonstrated needs resulting from evolving consumer demand, technical progress or the need for product innovation. This provision is interesting given the consumer demand for vegan food products, the protection of veganism in law and the importance of anti-discrimination law in the EU.
11.6 Registering new products
Campaigners could also explore the procedure for registering plant-based products in traditional use as established under Article 4 of Council Regulation (EEC) No 1898/87. Assessment guidelines were provided by the FSA which are now archived here.
11.7 Brexit
In the UK context, legal academics and commentators might also wish to explore the implications of Brexit and whether there is scope for new regulations that could require all food labelling to be more specific. For example, ‘cow’s milk’ ‘almond milk’, and coconut milk’ makes clear which ‘milk’ is being purchased. Alongside this development, new healthy eating guidance could give equal attention to the nutritional value of plant-based products.
11.8 The legal protection of vegans
Also in the UK context, legal academics and commentators could explore the responsibilities of public bodies in relation to the prohibition on unlawful interference with manifestation of veganism under the Human Rights Act 1998, and, similarly, whether the Public Sector Equality Duty (EA 2010) can be invoked against enforcement of the Regulations. Legal protection for vegans is provided on an individual level and the scope of “manifestation” in law has previously been limited to acts intimately associated with holding a belief. However, accessing suitable food according to one’s ethical orientation could be argued to be intimately associated with veganism, but more critical legal analysis is required to identify whether rights and equality law are applicable, in practice as well as theory, to food regulations, and useful to vegan food producers.
11.9 Protecting minorities
Another topic for academic discussion, is whether the UK has any obligations to vegans under The Framework Convention for the Protection of National Minorities (FCPNM). There is no definition of a national minority, but self-identity on the grounds of religion or belief, evidenced by traditional and cultural norms, is relevant. The FCPNM is a powerful mechanism that recognises minority interests and supports the culture and growth of minority communities. Consideration for vegans under the FCPNM may be regarded a ‘long-shot’ but nevertheless worthy of academic discussion.
Suggested citation: Rowley, J. ’Dairy’s identity crisis: digesting the socio-politico-legal landscape’, The Vegan Society, March 2023.
The views expressed by our Research News contributors are not necessarily the views of The Vegan Society.
