Plant-based meat substitutes, such as veggie sausages and hot dogs, meatless ham, and dishes usually associated with a meat ingredient, such as burgers, gyros, or steak tartare, but not containing animal-based protein, have probably already found permanent homes in stores. A conscious consumer will notice that some brands operating in Poland, besides adding adjectives such as “plant-based” or “vege,” avoid directly labeling terms previously associated mainly with meat products. Therefore, on the market, we can find product names such “kurak” (“the chickenish”) or “nielone” (“non-cultet”).

So far, there has not been any statement from the CJEU on the issue of permissible—i.e., not misleading the consumer—nomenclature for plant products that imitate meat products. It is worth noting that in 2017, the CJEU issued a judgment in which it found that the use of the term “milk” and the names of the products processed of it cannot, principally, be applied to plant products, even if the name indicates a plant ingredient from which the product was made.

What does the CJEU think about plant-based ham?

In its October judgment, the CJEU ruled that no provision of EU law requires the use of fixed legal names for plant protein-based products or specific legal names for products solely because they are identified as being of animal origin without any other indications.

The judgment was issued in connection with challenging a French governmental decree that banned the use of terms such as “cutlet” or “sausage” without additional explanations or even with them, simultaneously using terms such as “plant-based” or “soy”.  According to the plaintiffs, the decree violated EU Regulation No. 1169/2011 on the provision of food information to consumers.

What are the rules for naming products?

Regulation No. 1169/2011 states that the name of a food is its “legal name.” In the absence of such a name, the name of the food is its “customary name.” If a customary name does not exist or is not used, a “descriptive name” of the food is provided.

The CJEU noted that if a Member State has not adopted any legal name for a given product category, it cannot, using a general and abstract prohibition, prevent plant-based product food producers from using customary or descriptive names.

Meatless sausage sounds ok, but…

The CJEU, however, left a loophole possibly appealing to the meat industry. It ruled that member states may adopt other names for this type of product, and only if they have not been defined in the regulations can it not be considered prohibited for plant-based food producers to use customary names.

Moreover, the CJEU pointed out that the EU law establishes a rebuttable presumption that product information provided under the detailed rules it established adequately protects consumers. However, if a national authority finds that the labeling misleads the consumer, it may initiate proceedings against the entity concerned and demonstrate that the presumption above has been rebutted.

The Polish legislator’s work on prohibiting regulation has been suspended

It should be recalled that the Polish legislator has already attempted to regulate the ban on using names such as “sausage,” “ham,” or “cold cuts” for meatless products, but work on this regulation has been suspended. According to the official statement of the Minister of Agriculture and Rural Development, this happened due to a lack of consensus among the interested groups. Since March, the Government Legislation Center has not published new information about this draft.

Lawyers at Jabłoński Koźmiński and Partners have years of experience advising on the labelling of food products and representing producers and distributors in administrative and court proceedings.