What’s your name? Never ask a Food!
By Valeria Paganizza
Have you ever thought about the name of a food? When eating, we usually focus on what is on our plate, rather than the way in which we designate it. Yet, the name of the food is so fundamental that the EU Legislature decided to regulate how to choose and indicate it.
So, what shall we name the food? Regulation (EU) no 1169/2011 requires to use the legal name, which corresponds to «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». This means that, whenever an act of the EU or a national or local provision sets a specific term for a food and wherever a product corresponds to that definition, the food business operator must use that name. Labelling and marketing activities will have no other choice: that is the name that the law set for that food, that is the name that must be used. So, for example, chocolate «designates the product obtained from cocoa products and sugars which […] contains not less than 35% total dry cocoa solids, including not less than 18% cocoa butter and not less than 14% of dry non-fat cocoa solids» [Annex I, A, 3, (a) of Directive 2000/36/EC].
What if the Legislature have not regulated a certain product’s name? Well, in that case, the customary name will be used. As the expression suggests, it is the «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». So, if we want to refer to cookies, in general, we will use “cookie”. Simple, isn’t? Actually, the food business operator must be careful also in identifying the customary name and make sure that consumers are not misled. According to paragraph 3, of Article 17 of Regulation (EU) no 1169/2011 the name of the food in the Member State of production shall not be used in the Member State of marketing, when the food that it designates in the Member State of production is so different, as regards its composition or manufacture, from the food known under that name in the Member State of marketing, that even supplementary information provided in the label is not sufficient to ensure, in the Member State of marketing, correct information for consumers.
Sometimes, both legal and customary names are lacking. What then? In that case, the food business operator will use a descriptive name, which 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». Let’s imagine a bakery product or, for the greedy of us, a hazelnut spread with skim milk and cocoa or a ready-to-eat dish, composed of “diced chicken and vegetables in a red chilli sauce with instant noodles”: there’s nothing more descriptive than this, isn’t there?
The regulatory framework on food names is completed by several other requirements, which are essential to allow consumers to make informed choices when buying foods. For instance, according to Annex VI to Regulation (EU) no 1169/2011, «the name of the food shall include or be accompanied by particulars as to the physical condition of the food or the specific treatment which it has undergone (for example, powdered, refrozen, freeze-dried, quick-frozen, concentrated, smoked) in all cases where omission of such information could mislead the purchaser». Since in the European Union we do not like to have simple provisions, the Legislature included also several exceptions. Are you curious? Take a look at the Regulation!
As the readers can imagine, food business operators are required to carried out a 360° search to understand if any hidden provisions exist on the names of products, paying attention not to mislead the consumers and not to hit sensible interests. An example? Try to imagine “food analogues”, that is to say plant-based products that are intended to replace food of animal origin: a hard life for food business operators! On the one hand, they must be sure not to use names that are legally defined for specific categories of products. So, for instance, in the European Union, a soy or rice drink will not be allowed to use the name “milk”, since, according to Regulation (EU) no 1308/2013, Annex VII, part III, par. 1, milk means «exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom». Par. 2 further reserves some names to exclusively for milk products, at all stages of marketing (so also when used, as ingredients, in the production of compound foods): whey, cream, butter, buttermilk, butteroil, caseins, anhydrous milk fat (AMF), cheese, yogurt, kephir, koumiss, viili/fil, smetana, fil, rjaženka, rūgušpiens. If the provision was not clear enough, the Court of Justice cleared its meaning, with its Judgment in Case C-422/16.
What happens if the name is not identified by the law as a legal name? Can we use it for plant-based products? For instance, can a food business operator employ expressions like “vegetable balls”, “plant-based steak”, plant-based hamburger of similar? Currently, this is one of the most controversial issues in food labelling. Several EU Member States are adopting national provisions to prohibit the use of “animal-related names” for plant-based products. In Italy, for instance, the Law 01 December 2023, no 172 laying provisions on the prohibition to manufacture and place on the market food and feed constituted, isolated or produced from cell culture or tissues from vertebrates and on the prohibition to use meat names for processed food containing vegetable proteins, in its Article 3 prohibits the use of legal, customary and descriptive names referred to meat, meat based products and products mainly obtained from meat to products containing exclusively vegetable proteins. The law also prohibits the reference to animal species, groups of animal species. Animal morphology or anatomy, as well as terms that are characteristics of butchery, delicatessen and fishmonger, and names of food of animal origin representing trade practices. The Italian law shows several criticalities, running from objectives that seem to contrast with the EU principles to an absolutely discretionary semantic. The main weakness is however a procedural defect that causes the law non-applicability. Being a set of technical provisions, the national act required to be notified to the European Commission. With the notification, a standstill period started, during which the notifying State is prevented from enacting the national act. Despite this provision, the Italian law was published in the national Official Journal and entered into force during the standstill period, in breach of EU law.
The attempt to restrict the possibility to use names that recall products of animal origin for plant-based products was enacted also by France with Decree no 2022-947 of 29 June 2022, on the use of certain names for food containing vegetable proteins (now repealed by Decree 2024-144). With parallel procedures, Protéines France, representing the interests of operators of the plant-based food sector, on the one hand, and the European Vegetarian Union (EVU), the Association végétarienne de France (French Vegetarian Association, AVF), and Beyond Meat Inc., which manufactures and place on the market plant-based products, on the other hand, challenged the decree in front of the French Council of State (Conseil d’État), asking for annulment. Plaintiffs underlined that the Decree no 2022-947 contravened several provisions of Regulation (EU) no 1169/2011, in prohibiting the use of words like “steak” or “sausage” for plant-based products, irrespectively of the presence of further information on the nature of the product.
The Conseil d’État decided to stay the proceeding and to refer the Court of Justice asking, if the provisions on food names can be considered fully harmonized or if there is still space for national Legislature to adopt acts that can set a maximum percentage of vegetable protein for a food, to bear a name usually used in butchery, charcuterie and fish sector (C-438/23). The national judge specifically referred the following questions: «Must the provisions of Article 7 of Regulation (EU) No 1169/2011, which require consumers to be provided with information that does not mislead them as to the identity, nature and properties of foods, be interpreted as meaning that they specifically harmonise, within the meaning of and for the application of Article 38(1) of that regulation, the matter of the use of names of products of animal origin from the butchery, charcuterie and fish sectors to describe, market or promote foods containing vegetable proteins which may mislead the consumer, thereby preventing a Member State from acting in that matter by adopting national measures regulating or prohibiting the use of such names?
2. Must the provisions of Article 17 of Regulation (EU) No 1169/2011, which provide that the name by which the food is identified is, in the absence of a legal name, to be its customary name or a descriptive name, in conjunction with point 4 of Part A of Annex VI thereto, be interpreted as meaning that they specifically harmonise, within the meaning of and for the application of Article 38(1) of that regulation, the matter of the content and use of names, other than legal names, designating foods of animal origin to describe, market or promote foods containing vegetable proteins, including in the case of whole substitution of ingredients of vegetable origin for all the ingredients of animal origin constituting a food, thereby preventing a Member State from acting in that matter by adopting national measures regulating or prohibiting the use of such names?
3. If Question 1 or Question 2 is answered in the affirmative, does the specific harmonisation carried out, within the meaning of and for the application of Article 38(1) of Regulation (EU) No 1169/2011, by the provisions of Articles 7 and 17 of that regulation, in conjunction with point 4 of Part A of Annex VI thereto, prevent:
(a) a Member State from adopting a national measure providing for the imposition of administrative penalties in the event of non-compliance with the requirements and prohibitions resulting from the provisions of that regulation?
(b) a Member State from adopting a national measure determining the proportions of vegetable proteins below which the use of names, other than legal names, designating foods of animal origin to describe, market or promote foods containing vegetable proteins would still be authorised?
4. If Questions 1 and 2 are answered in the negative, do the provisions of Articles 9 and 17 of Regulation (EU) No 1169/2011 authorise a Member State:
(a) to adopt a national measure determining the proportions of vegetable proteins below which the use of names, other than legal names, designating foods of animal origin is permitted for the purpose of describing, marketing or promoting foods containing vegetable proteins?
(b) to adopt a national measure prohibiting the use of certain customary or descriptive names, including where they are accompanied by additional indications ensuring that the consumer is provided with information in good faith?
(c) to adopt the measures referred to in Question 4(a) and (b) only in respect of products manufactured in its territory, without, in that case, infringing the principle of proportionality of those measures?».
To answer the questions, the Court of Justice takes into account several provisions of Regulation (EU) no 1169/2011, starting from Article 38, which prohibits the adoption, by Member States, of national measures «as regards the matters specifically harmonised» by the Regulation. Recalling previous case law, the Court recognizes that no provision in Regulation (EU) no 1169/2011 contains a list of harmonised subjects (point 51). It therefore focuses on other provisions of the Regulation. According to Article 7, para. 1 and 2 food information must be «accurate, clear and easy to understand» and must not mislead the consumer, with regards to, among others, the characteristics of the food including its nature, identity, and composition or the suggestion of the presence of a particular food or an ingredient, while that component has been replaced with a different ingredient. The judgment recalls also the mandatory particular of the name of the product, under Article 9 (point 56) and the specific requirements that we have already mentioned in identifying what name should be used, according to Article 17 (point 59), to be read in conjunction with the definitions of Article 2 and the provisions of Annex VI, part A, point 4. This last provision requires that when a «component or ingredient that consumers expect to be normally used or naturally present has been substituted with a different component or ingredient, the labelling shall bear - in addition to the list of ingredients - a clear indication of the component or the ingredient that has been used for the partial or whole substitution», in close proximity to the name.
While recognizing that the European Union law does not prescribe any legal name for plant-based products, the Court emphasises that the objective assessment that decides if the national legislation has established a legal name is in charge of the national judge. The EU Court, however, provides some elements to correctly interpret EU law and that could be summarized in the following points:
1. While some EU provisions set a legal name for certain products, like milk (see TofuTown Judgment, Case C-422/16), there is not a legal name for “products of animal origin” (point 66 and 78).
2. The French Decree does not contain the legal name for products of animal origin (point 67 and 80). It just requires identifying which customary or descriptive names cannot be used to identify food containing vegetable proteins.
3. While Regulation (EU) no 1169/2011 authorises national and local authorities to adopt legal names for food products if they are not already set by EU law (point 70), it does not allow them to set customary or descriptive names (81).
4. The provision laid down in Regulation (EU) no 1169/2011 that requires the name to be accompanied by information of the replacement of an ingredient with a different component, when the consumer would expect that the food contains the replaced ingredient, offers adequate protection to the consumer. Answering the first and second referred questions (which makes unnecessary answering the fourth question), the Court considers therefore the subject as being fully harmonised.
5. Even if the Regulation refers to the replacement of an ingredient or component with a different ingredient or component, this does not exclude the applicability of the Regulation when the ingredient of component that has been replaced is the single constituent of that food (points 87-92).
6. No prejudice is done to the supervising competences of national authorities that should invigilate on the compliance with the general requirements of Regulation (EU) no 1169/2011 and that should sanction the food business operator responsible for information for any practice that can mislead the consumer (point 95).
7. While any Member States is entitled to adopt administrative sanctions for the violation of food law, setting a maximum threshold of vegetable protein content for a product to be identified with customary or descriptive names that recall products of animal origin means regulating the use of those names (which is not allowed, as specified in our point 3). This is the answer to the third question referred by the Conseil d’État (points 105-106).
The Judgment of the Court hides both a possible recommendation and two suggestions to all the Member States (including Italy) that have been tried to prohibit the use of names for products of animal origin. The recommendation is to avoid the adoption of provisions that regulates “customary” or “descriptive” names. On the other hand, the Court seems to suggest a double way to reach the same objective: setting by law legal names for products of animal origin (which could then generate further issues that we are not discussing here); and grounding sanctions on the capability of the food presentation and information to mislead the consumer. Will someone seize the day?