Attorney Beuger: “The Average Consumer is Informed Enough to Recognise the Difference Between this Product and an Animal Product.”

©Tofutown

In 2017, the German plant-based foods company Tofutown was sued for calling its plant-based veggie products “Veggie Cheese”.  It was represented by the law office Kanzlei WILDE BEUGER SOLMECKE. In this interview Attorney Beuger, who defended Tofutown, expresses his opinion about the verdict and how he believes people’s views of the plant-based industry may be shifting in the right direction.

Attorney Ralf Müller-Amenitsch, who specializes in vegan law, was happy to catch up with Attorney Bueger and ask him the following questions.

Attorney Ralf Müller-Amenitsch
You have made legal history with two test cases in the field of dairy product-like designations of plant-based products.

First with the so-called Tofu Town Decision, which was at the expense of the supplier of plant-based products, and finally with the possibly trend-setting decision of the civil Court of Stade. The Tofu-Town decision went all the way to the ECJ, which ruled that the terms “Tofu Butter” and “Rice Spray Cream” were inadmissible.

Can you explain the verdict?

Attorney Beuger
In the Tofutown ruling, the European Court of Justice had to decide on the legal question of whether it is permissible for manufacturers of plant-based foods to use terms such as milk, cream, butter, cheese etc. to label their products even if they indicate whether they were obtained from animals or vegetables.

The European Court of Justice had denied this legal question and, referring to the Milk Regulation anchored in European food law, had stated that the terms milk, butter, cream etc. may only be used for milk and milk products obtained from animal udder secretion. In the opinion of the ECJ, consumer deception using terms such as “tofu butter” could not be excluded from this regulation.

The ECJ’s decision received a great deal of media attention because this legally justifiable decision has been met with a different reality. The media has often raised the question of how this is possible when consumers have been using products with names like “soy milk, oat cream, etc.” for decades, well-aware of exactly what they were consuming.

This decision has created uncertainty among manufacturers of plant-based foodstuffs over how to legally name their products in a way that is comprehensible to consumers.

As a result of the ruling, a company from northern Germany, which we advise, has labelled its cashew cheese a “cheese alternative”. Our client was then told to refrain from using this term. After refusing she was sued for injunction at the Stade Civil Court. The higher-court dismissed the case on the grounds that the term “alternative” makes it sufficiently clear that the product is not an animal product but an alternative. The term (“alternative milk, cheese, etc.”) was in fact useful for the consumer to know how to use it and what taste they can expect.  Fortunately, the Celle Higher civil Court followed this reasoning and rejected the appeal of the Competition Authority against the decision of the Stade Civil Court.

Attorney Müller-Amenitsch
For consumers of plant-based products, traditional product names (milk, cheese) help consumers make appropriate purchasing decisions.

Attorney Beuger
This is precisely why the decisions of the German courts were so important from the consumers’ point of view. For them, it must be clearly recognisable what kind of product they are purchasing, how they can use it and which animal food is being replaced. This way it is easier for them to switch from a diet predominantly based on animal products to one that is more plant-based, for environmental and ethical reasons, among others.

Attorney Müller-Amenitsch
When using the term “tofu butter”, for example, is it possible to draw conclusions about the taste of the product?”

Attorney Beuger
Yes, conclusions can be drawn about taste, but it also shows that tofu butter can be used in the same way cow milk butter is normally used.

Attorney Müller-Amenitsch
We have similar advantages with terms like vegan chicken burger, or vegan vegetable honey, or vegan cream cheese. From the point of view of the consumer, these names can be helpful.

Attorney Beuger
Haha, meatloaf is, of course, a special case and perhaps a classic example of consumer deception. As far as I know it has nothing to do with cheese and is more of a sausage mass than meat. Astonishingly enough, however, this does not infringe on either the EC milk regulation or competition law.

With regards to whether the use of the designation of vegetable alternatives to meat, sausage, cheese or dairy products is beneficial from the consumer’s point of view, the answer is unreservedly yes, because the invention of new names for products that were not previously so well-known inevitably led to uncertainty among consumers as to what they could expect from the product. For such a new name to be accepted, it would have to be used by all the producers of these plant-based alternatives. So what should we call a vegetable product that looks like a sausage, tastes like a sausage and is put on the barbecue like a sausage? I think it makes a great deal of sense not to turn the general use of language completely upside down, but to use the familiar terms used in animal food production for plant-based products too, and tell consumers it is a plant-based alternative.

Attorney Müller-Amenitsch
The competition often objects that there is a danger of confusion and that the product name is therefore anti-competitive.

©Tofutown

Attorney Beuger
I do not see this risk. The average consumer is informed enough to recognise the difference between this product and an animal product, which the manufacturers have explicitly emphasised in the label.

Attorney Müller-Amenitsch
 I have seen that the cases of confusion are statistically irrelevant.

Attorney Beuger
I am not aware of any cases of confusion, and no one has ever presented me with statistical surveys to the contrary, not even in the legal proceedings mentioned.

If there are statistics, you have to look closely at their evaluation methods, what and who and where and how many people were asked. Especially during the Covid-19 pandemic. But a carefully and well-conducted consumer survey is of course helpful and would have certainly helped us in the court cases.

Attorney Müller-Amenitsch
Irrespective of the controversial misleading of the consumer, European regulations (Article 78 of Regulation No 1 308/2013) reserve the use of the terms milk and milk-like designations exclusively for products from udder secretion.

Attorney Beuger
That is correct.

Attorney Müller-Amenitsch
Do you think these regulations are a defense mechanism for an economic sector affected by the disruption of the food industry?

Attorney Beuger
As far as I know, the milk law was introduced in Germany in the 1930s, which protected the term “milk”, to create hygiene standards for the production of cow’s milk. It stipulated that the milker had to roll up their sleeves past their forearms to prevent bacteria from the clothes from getting in the milk. There were also fraudulent attempts to sell mixtures of lime, flour and white powder instead of cow’s milk. Obviously there was a need to put a stop to this.

Today, 90 years on, I still consider hygiene standards and the prevention of food fraud to be important legislative duties. But the law should not hinder the positive and necessary development of food production.

Attorney Müller-Amenitsch
For many companies, especially start-ups, the wrong product designation can have disastrous economic consequences.

Attorney Beuger
That is absolutely right. In the worst case scenario, products will have to be taken off the market as they will no longer be marketable and would have to be destroyed if they could not be given away to the appropriate organisations. The manufacturer would have to deal with the costs of these recalls and would lose their turnover, forcing them to destroy existing packaging material. This could result in the company’s insolvency, not to mention the waste of food and packaging resources. For the company we represented before the civil Court of Stade and the Higher Civil Court of Celle, the legal proceedings also posed an enormous economic threat and financial burden. It was only because a large number of plant-based food companies joined the Veggie Working Group of the AÖL (Association of Organic Food Producers) in cooperation with the non-profit association VegOrganic e.V.  to form a defense association, that it was possible to absorb the costs of the legal dispute and provide “backing” for the company we represented.

Attorney Müller-Amenitsch
What would you recommend to companies that want to bring innovative plant-based products to market?

Attorney Beuger
Companies should seek advice from lawyers with expertise in food law if they are not familiar with the current legislature.

Attorney Müller-Amenitsch
By the legally binding and higher court confirmed judgement of the Stade Civil Court, corresponding products can be brought onto the market if they are described as “vegan alternatives to…”.

Attorney Beuger
There is a good chance another court will learn about the existing case and if they have a different opinion on the facts, they must give good reasons for this. Today we have global issues such as climate change and also the corona pandemic, which is apparently triggered by animals. This is good reason for me to believe decisions by German courts that hinder access to a more plant-based diet are rather unlikely.

Attorney Müller-Amenitsch
Thank you very much and I wish you continued success in your valuable work.