I. France’s Decree No. 2022-947 on the use of certain names to designate foodstuffs containing vegetable proteins

The purpose of Decree No. 2022-947 is to lay down rules on the use of names designating products of animal origin and foodstuffs derived therefrom for the purpose of describing, marketing or promoting foodstuffs containing vegetable proteins. The Decree implements Article L. 412-10 of France’s Consumer Code in its version resulting from Article 5 of Law No. 2020-699 of 10 June 2020 on the transparency of information on agricultural and food products,Footnote ² which provides that “[n]ames used to designate foodstuffs of animal origin may not be used to describe, market or promote foodstuffs containing vegetable proteins. A decree fixes the share of vegetable proteins beyond which this denomination is not possible. This decree also defines the modalities of application of this article and the penalties incurred in the event of non-compliance” (unofficial translation).

This is not the first time that France has considered banning “meaty” names such as “bacon” or “sausage” for plant-based foods, but it is the first time that a list of protected denominations for meat products has been introduced. In 2018, within the legislative procedure of France’s draft Rural and Marine Fishing Code,Footnote ³ amending France’s Consumer Code regarding the naming of plant-based food products was discussed (see Trade Perspectives, Issue No. 9 of 4 May 2018Footnote ⁴ ), but the changes to the Consumer Code were finally only made in 2020 and are now implemented by the Decree. The Decree states in its introduction that it would “not be possible to use the terminology specific to the sectors traditionally associated with meat and fish to refer to products not belonging to the animal kingdom and which, in essence, are not comparable” (unofficial translation).

Article 2 of the Decree provides that, “to designate a processed product containing vegetable proteins, it is prohibited to use: 1) A legal name for which no addition of vegetable proteins is provided for by the rules defining the composition of the food concerned; 2) A name referring to the names of species and groups of animal species, morphology or animal anatomy; 3) A name using the specific terminology of butchery, charcuterie or fishery; 4) A name of a food of animal origin representative of commercial uses” (unofficial translation). Article 3 of the Decree provides for derogations from Article 2 by virtue of which “the name of a food of animal origin may be used: 1) For foodstuffs of animal origin containing vegetable proteins in a determined proportion when such a presence is provided for by the regulations or mentioned in the list annexed to this decree; 2) To designate flavourings or food ingredients with flavouring properties used in foodstuffs” (unofficial translation). According to Article 5 of the Decree, products legally manufactured or marketed in another EU Member State or in Turkey or legally manufactured in another State party to the Agreement on the European Economic Area are not subject to the requirements of the Decree.

The Annex to the Decree contains a list of names of foodstuffs of animal origin that may contain vegetable proteins and the maximum share of vegetable proteins that may be contained in the foodstuffs for which those names are used. The list includes, inter alia, the terms “preparation of minced meat” (7.0% vegetable protein allowed), “bacon” (0.5%), “bresaola” (0.5%), “sausage” (0.5%), “merguez” (1.0%), “chorizo” (3.0%), “pâté ardennais” (5.0%), “liquid/powdered whole egg” (0.1%) and “omelette” (0.1%). The term “burger” does not appear to be covered by Article 2 and has not been listed in the Annex. According to industry sources, the uses of the term “burger” for plant-based food, which is used by many brands, including the companies Beyond Meat and Impossible Foods, “would still be allowed as it does not specifically refer to meat”.

Prior to its adoption, France’s draft Decree was notified to the European Commission under the EU Technical Regulation Information System’s (TRIS) procedure on 1 October 2021Footnote ⁵ and received comments by the Commission on 20 December 2021 and, on 17 January 2022, by the Czech Republic, Portugal, Slovenia and Sweden, as well as by other stakeholders. The European Consumer Organisation (BEUC) noted on 20 December 2021 that the Decree contradicts the EU’s Farm to Fork Strategy and Europe’s Beating Cancer Plan, which recognise the need to promote a more plant-based diet with less red and processed meat in the EU in the interest of citizens’ health and the environment.Footnote ⁶ BEUC noted that “a range of attractive, affordable, and convenient alternative sources of proteins must be available to consumers. The attractiveness of alternative protein sources depends a. o. on them being easily identifiable by consumers. The denomination of meat-free (or fish-free) products should neither mislead consumers nor discourage them from buying these products. The use of culinary names associated with meat, meat cuts or fish on plant-based foods (such as ‘steak’, ‘sausage’, ‘burger’) makes it easier for consumers to know how to integrate these products within a meal, and as such should not be banned”.

France nevertheless adopted the Decree with some amendments. In particular, the list in the Annex was added after the TRIS procedure and it did not include the term “burger”.

II. The EU legal framework for “meaty” and dairy names for plant-based products

Also at the EU level, there has been a debate on the use of “meaty” and dairy names for plant-based products. For plant-based dairy names, the debate was mostly settled on 14 June 2017, when the Court of Justice of the European Union (hereinafter, CJEU) handed down its judgment in Case C-422/16 TofuTown.Footnote ⁷ The German company TofuTown promoted and distributed purely plant-based products under the designations “Tofu butter”, “Plant cheese”, “Cream” and other similar designations. The CJEU held that purely plant-based products such as tofu or soya cannot, in principle, be marketed with designations such as “milk”, “cream”, “butter”, “cheese” or “yoghurt”, which, under Regulation (EU) No 1308/2013 of the European Parliament and of the Council establishing a common organisation of the markets in agricultural productsFootnote ⁸ (hereinafter, CMO Regulation), are reserved for animal products. In particular, the CJEU observed that the addition of descriptive or explanatory terms indicating the plant origin of the product concerned and/or that it does not contain animal products cannot completely exclude the likelihood of confusion on the part of consumers. As regards the principle of equal treatment, the CJEU held that each sector in the CMO Regulation embodies features specific to it and, 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 discrimination between dissimilar products, which are subject to different rules.

In fact, for meat products, with a few exceptions, there are no legal names, similar to those for dairy products. Annex VII to of the CMO Regulation contains only general sales descriptions for meat of bovine animals (like “veal” in English) but currently no different-language versions of meat products like “sausage”, ”prosciutto” or “Schnitzel”. In the context of the Commission’s proposal revising the CMO Regulation, Members of the European Parliament proposed an amendmentFootnote ⁹ that intended to reserve the use of meat-related terms and names such as “steak”, “sausage” or “burger”, currently used for meat and meat cuts, “exclusively for products containing meat”. However, on 23 October 2020, the European Parliament’s plenary rejected the amendment, which had been approved by the European Parliament’s Agriculture Committee. Thus, Regulation (EU) 2021/2117 of the European Parliament and of the Council of 2 December 2021 amending Regulations (EU) No 1308/2013 establishing a common organisation of the markets in agricultural productsFootnote ¹⁰ finally does not include such reservation of terms. However, a provision was added to the CMO Regulation that a protected designation of origin and a protected geographical indication shall be protected against “any misuse, imitation or evocation, even if the true origin of the product or service is indicated or if the protected name is translated, transcripted or transliterated or accompanied by an expression such as ‘style’, ‘type’, ‘method’, ‘as produced in’, ‘imitation’, ‘flavour’, ‘like’ or similar, including where those products are used as ingredients”. Arguably, this provision would prohibit any reference to and “evocation” of dairy terms, such as “creamy”, “plant-based alternative to yoghurt” or claims such as “this product does not contain milk”.

III. Does France’s Decree No. 2022-947 contradict EU policy initiatives?

France’s Decree bans plant-based food products from using denominations associated with meat. Certain commentators have labelled France’s move as a protectionist measure benefitting the meat sector. Others have argued that the Decree goes against the objectives of major EU policy initiatives, namely the EU’s Farm to Fork StrategyFootnote ¹¹ and Europe’s Beating Cancer Plan,Footnote ¹² which both emphasise the need to move to “a more plant-based diet with less red and processed meat”, reducing not only risks of life-threatening diseases, but also the environmental impact of the food system. Furthermore, Regulation (EU) 2021/1119 of the European Parliament and of the Council establishing the framework for achieving climate neutrality (“European Climate Law”)Footnote ¹³ has the objective of reducing greenhouse gas emissions by at least 55% by 2030. Certain commentators argue that reducing emissions from the agricultural sector and shifting away from intensive animal farming and towards more plant-based diets might be necessary for meeting the Paris climate target of limiting global warming to “well below” 2°C.

The existing provisions of Regulation (EU) No. 1169/2011 on the provision of food information to consumers may provide sufficient legal basis to protect consumers from being misled by denominations for plant-based meat alternatives if those are also denominated “vegan” or “vegetarian”. In addition, a study conducted by the German market research company Forsa found that only 4% of German consumers unintentionally bought meat substitutes thinking they were animal-based.Footnote ¹⁴

According to its Article 8, Decree No. 2022-947 enters into force on 1 October 2022, and foodstuffs manufactured or labelled before 1 October 2022 that comply with the regulations in force on that date may be marketed until stocks are depleted, and at the latest until 31 December 2023. The next steps taken in the EU and its Member States on the use of “meaty” names for plant-based products should be monitored, and stakeholders should be prepared to participate in the debate by interacting with relevant EU Institutions, trade associations and other affected stakeholders.