II Facts and questions referred for a preliminary ruling

The dispute in the main proceedings may be summarised as follows. The Verband Sozialer Wettbewerb (“VSW”) is a German association opposed, inter alia, to unfair competition. TofuTown is a company which produces and distributes vegetarian/vegan foodstuffs. It promotes and distributes, among other items, pure plant-based products.

VSW sued Tofutown – also requesting the application of provisional measuresFootnote ⁶ – arguing that the promotion by TofuTown of the pure plant-based products, particularly under the designations “Soyatoo tofu butter”, “Plant cheese”, “Veggie Cheese”, “Cream” and other similar designations, infringes competition rules. Indeed, the issue had already been settled in a previous judgement, in which the ECJ held that Regulation (EC) 1898/87 precluded the use of the description “cheese” for products in which the milk fat has been replaced by vegetable fat, even if that description is complemented by additional descriptive material.Footnote ⁷ Notwithstanding this, the national Court still felt unsure as to the interpretation of Article 78 of Regulation No 1308/2013 in conjunction with Annex VII, Part III, points 1 and 2, thereof, for the purpose of deciding the dispute before it.Footnote ⁸ The national Court thus referred three questions to the Court of Justice for a preliminary ruling, which can indeed be encapsulated in one: does EU law in force allow designations relating to “milk” products for products that are, in essence, plant-based, even in the presence of other descriptive information (such as “tofu”) which clarifies and indicates the “name” of the food? Against this background, a more general problem is posed. This concerns the influence that the “vegan mantra” may exert on the consumers. In fact, the designation “no animal” may constitute an appealing market alternative for the general public.

III The court’s decision

The reasoning of the ECJ is very careful about being in line with the exact wording of the text of the legislation involved. In fact, as seen above, the Court is explicit in prohibiting that designations relating to “milk” products are used for plant-based products, though with the exceptions already mentioned. This continues to be true even when adequate descriptive information is specified.Footnote ⁹ In so doing, the Court draws most of the reasoning from the 18-year-younger UDL case,Footnote ¹⁰ apart from the obiter dicta stated to overcome TofuTown’s arguments on the purported violations of the principle of proportionality and the principle of non-discrimination.

As regards the principle of proportionality, it is easy for the Court to rule that in matters concerning the Common Agricultural Policy the EU legislature has a broad discretion coming from Articles 40 and 43 TFEU. Thus, a measure can be dismissed only if manifestly inappropriate, having regard for the objective which the competent institution is seeking to pursue.Footnote ¹¹ As far as common organisation of agricultural markets is concerned, such objectives “consist, in particular, in improving the economic conditions for the production and marketing as well as the quality of such products. The application of such standards is therefore in the interest of producers, traders and consumers, to protect consumers and to maintain conditions for allowing competition”.Footnote ¹² This – according to the Court – justifies the existence of the ban even in the presence of adequate descriptive information in labelling or any other means of communication. Therefore, the Court makes it clear that the rules in question shall be interpreted so as to serve the legislature’s aims. The latter are to ensure the requirements “to the producers of those products” (author’s note: dairy producers) “of undistorted conditions for competition, and to consumers of those products, that the products designated by those designations meet all the same standards of quality, both protecting them against any confusion as to the composition of the products they intend to purchase”.Footnote ¹³ The exception of proportionality can therefore be considered as dismissed on condition that the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question are not exceeded. In fact, “the addition of descriptions or explanations to those designations to designate products which do not satisfy those requirements cannot prevent with certainty any likelihood of confusion in the mind of the consumer”.Footnote ¹⁴

With regard to the principle of non-discrimination, the matter was raised with reference to the equal treatment between producers of vegetarian or vegan substitutes for milk or milk products and those of vegetarian or vegan substitutes for meat or fish. In fact, according to TofuTown, the latter are not subject to restrictions comparable to those of the former in terms of sales description. On this point, the Court affirms that the principle requires comparable situations not to be treated differently and different situations not to be treated alike unless such treatment is objectively justified.Footnote ¹⁵ Against this background, it can be said that “each sector of the common organisation of markets for agricultural products established by that regulation embodies features specific to it. As a result, a comparison of the technical rules and procedures adopted in order to regulate the various sectors of the market cannot constitute a valid basis for the purpose of proving the complaint of discrimination between dissimilar products which are subject to different rules”.Footnote ¹⁶

IV An excessive protection of the consumer?

As mentioned above, the decision revolves around a literal interpretation of the provisions contained of the common organisation of agricultural matters. This stance is justified by the need to protect a particular type of food business operator (ie dairy producers), as well as having the aim of defending the consumer’s rights.

The Court recognised a wide discretion to the EU legislature, which ensures that the ban is lawful despite the fact that it is only applicable to producers of one supply chain, whereas the others must continue to respect regular competition rules. On the contrary, the reference to consumer protection is used as an argument to justify the ban even where the addition of descriptions or explanations to those designations should avoid any possible likelihood of confusion in practice. Whereas the first argument is entirely in line with settled case law, the latter is indeed open to criticism. It is hard to believe that the Court stumbled into such a blatant contradiction. It is more credible that the reference was made to a different – and deeper – notion of “likelihood of confusion”. It is, in other words, probable that what the Court referred to was the “likelihood of alteration of consumer perception”, usually understood by reference to the timing of the purchase. Such an alteration may indeed refer to a deeper concept, which is susceptible to substantiate the real “fundamental architecture of mass communication”.Footnote ¹⁷ This is the only possible explanation to understand the reasoning of the Court, given that in the present case no plausible likelihood of confusion for the consumer could ever have occurred. In this regard, the argument of the Court is not at all plucked out of the air, especially if the (paternalistic) need to shield the consumer is related to a sort of silent shift of meaning of words and concepts which may deceive the consumer while purchasing. Having second thoughts, the Court had already expressed such a “mythopoeic” conception of the commercial offer. This is clear in the case Severi, where the ECJ asserts that “among the factors to be taken into account in order to assess whether the labelling at issue in the main proceedings may be misleading, the length of time for which a name has been used is an objective factor which might affect the expectations of the reasonable consumer”.Footnote ¹⁸

This is clearly one of the main axes of the decision. However, as long as the ban is only applicable in one supply chain, the impression remains that the protection offered to the consumer is given without having been asked for. In the best case scenario, such protection is totally asymmetric, as it depends upon the supply chain concerned. Thus, the consumer is more protected in relation to dairy products than, for instance, in relation to meat and fish.

In sum, whereas the Court has sometimes prioritised teleological interpretations,Footnote ¹⁹ this time it has clearly preferred to tie its reasoning to a literal one. The aim has plausibly been to issue a wide-ranging decision, so as to frame vegan communication within the more general discipline of food information.

The issue at stake is likely to come up again in the future, particularly as the Commission – the exclusive master of the right of initiative – has made it clear that regulation of the dairy sector on this point will not be exported to the meat sector.Footnote ²⁰

V Vegan food communication: a regulatory problem?

It is worth noticing that the Court does not seize this opportunity to shed light on the relationship between the present case and the general discipline of food information to consumers laid down in Regulation (EU) 1169/2011. This leaves some questions unsolved regarding the consumption of vegan food. It is no coincidence that the Commission recently took an initiative to resolve the problem of defining “vegan” and “vegetarian” food at legislative level.Footnote ²¹ In particular, the issue of the rapid rise of different designations for products such as “soy-burger”, “vegan bresaola”, “vegan mortadella” and so forth remains completely unexplored.Footnote ²² An intervention on this point at EU level has been awaited since 2011 by virtue of Article 36, para 3, lett b), which provided that “the Commission shall adopt implementing acts on the application of the requirements referred to in paragraph 2 of this Article to […] information related to suitability of a food for vegetarians or vegans”. Because of the lack of any action by the Commission, an intervention of the Court in this respect would have perhaps been desirable to frame and unravel the main specificities of vegan communication. This ambit presents delicate issues, especially by virtue of the increasing usage of means of communications which – with a view to establishing a preferential relationship with the consumer – may affect competitors’ rights, particularly in the case of comparative advertising.

In the context of food law, the additional descriptions, such as those used in the TofuTown case, are ascribable to so called “voluntary food information”, mentioned in Chapter V of Regulation (EU) 1169/2011 and linked to the “fair information practices” mentioned in Article 7 of the same piece of legislation. The main rule concerning such information is that it shall not be “misleading”.Footnote ²³

Moreover, it is perfectly possible for the “food business operator responsible for the food information”Footnote ²⁴ to use regular designations relating to products of animal origin (such as hamburger, “bresaola”, “eggs” or “salame”)Footnote ²⁵ in the labelling of products which are entirely vegan (or vegetarian). This would give rise to a proper proliferation of the name under which a product is sold, drawing on the so called “descriptive name”.Footnote ²⁶

It is worth noticing that the freedom that the food business operator has to choose the name under which the product is sold – unless this is legally pre-determined (“legal name”) – is relatively recent as it traces back to Directive 79/112/EEC.Footnote ²⁷ A “creative” role of the food business operator is therefore recognised, although with some limits. As a result, the name under which a product is sold is first and foremost the “legal name”;Footnote ²⁸ in its absence, its “customary name” or the “descriptive name”.Footnote ²⁹ In the original text of Article 5 Directive 79/112/EEC – then integrated into Article 17 Regulation (EU) 1169/2011, “the name under which a foodstuff is sold shall be the name laid down by whatever laws, regulations or administrative provisions apply to the foodstuff in question or, in the absence of any such name, the name customary in the Member State where the product is sold to the ultimate consumer, or a description of the foodstuff and, if necessary, of its use, that is sufficiently precise to inform the purchaser of its true nature and to enable it to be distinguished from products with which it could be confused”.

It may be affirmed that the limits to the use of the “descriptive name” are not due to its potential to deceive, which would – in case – be relevant under Article 7. On the contrary, such limits are aimed at enabling the consumer to identify the “true nature” of a product and to avoid confusion with other similar products. If this is the case – ie if there a likelihood of confusion – the benchmark is set by the ECJ as being “presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect”.Footnote ³⁰

The legal definition of “vegan product”, asked for explicitly by numerous scholars,Footnote ³¹ seems indeed far from being the key to the solution, or at least not the only one. The food law regulatory framework – mainly made up of Article 1 Regulation (EC) 178/2002 and Article 7 Regulation (EU) 1169/2011 – as well as the rules on unfair competition, is actually sufficient to strike a balance amongst the interests at stake. In particular, it serves the purpose – if appropriately enforced at national level – of providing the consumer with fair and understandable information.

Amongst the elements to take into consideration in order to evaluate the deceptive nature of a label, an important role is played by the duration of use of a certain designation. On the contrary, good faith of the producer or the seller, as a “subjective element”, cannot impact upon the (“objective”) deceptive nature of the label. More generally, the EU legislature in 2011 seems to have focused on the aspect of labelling of food products in which nutritional, physical, chemical and organoleptic features are easily identifiable. The same need is now felt for “vegan products”. This is why specific provisions are laid down on designations and indications relating to them (Article 17, para 5 and Annex VI, part A, para 4Footnote ³² Regulation (EU) 1169/2011). More generally – as regards “fair information practices” – Article 7, para 1, let d) provides that food information shall not be misleading, “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”.

In the light of the above, it can be concluded that the TofuTown decision undoubtedly contributes some innovative elements, but also discloses some of the contradictions of the regulatory framework in force. In fact, on the one hand, permission is given to the food business operators to make autonomous marketing choices, although with the limits spelled out above; on the other hand, this freedom is limited to some market sectors only, justifying this stance by virtue of an apodictic call to consumer protection, even when such protection is not needed at all.