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The first quarter of 2018 saw Polish media report that peanut butter and coconut milk would disappear from the shelves of Polish shops. This was in the wake of a notice by the Polish Ministry of Agriculture and Rural Development that the European Commission had dismissed Poland’s request to disapply the dairy-related terminology requirements to a number of products whose names include the words “milk”, “butter” or “cream” but which are neither milk of animal origin nor derived from such milk. What is the problem here?
The European Union has for many years had laws restricting the use of terms associated with milk and dairy products. Such restrictions are known as dairy terms protection. Currently these matters are governed by Regulation (EU) 1308/2013 establishing a common organisation of the markets in agricultural products.
Regulation (EU) 1308/2013
The Regulation prescribes at Article 78 that the terminology and naming conventions (“definitions, designations and sales descriptions provided for”) in Annex VII shall apply to various kinds of sectors and products, including:
- milk and milk products intended for human consumption;
- spreadable fats intended for human consumption.
Furthermore, in accordance with the Regulation, such terminology and naming conventions may only be applied to products which meet the “corresponding requirements” laid down in that Annex.
The terminology and requirements for milk and milk products are laid down in Part III of Annex VII to the Regulation (with additional requirements relating to spreadable fats prescribed in Part VII of that Annex):
- “milk” means exclusively the “normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom”, and the animal species from which the milk originates shall be stated;
- “milk products” means products derived exclusively from milk (or, subject to certain conditions, from substances necessary for their manufacture).
Certain terms, including: whey, cream, butter, buttermilk, butteroil, caseins, anhydrous milk fat (AMF), cheese, yogurt, kephir, koumiss, are reserved exclusively for milk products.
Importantly, those designations and terms may not be used for products other than those described at (a) or (b) above, except in relation to “the designation of products the exact nature of which is clear from traditional usage and/or when the designations are clearly used to describe a characteristic quality of the product.”
The products exempted from the dairy terms requirements are specified in Commission Decision 2010/791/EU of 20 December 2010, containing an indicative list of product names in each official language of the European Union. While the decision was based on Regulation (EC) 1234/2007 which is no longer in force, the decision was maintained in force pursuant to Article 230 of Regulation (EU) 1308/2013.
In respect of any product other than those falling under the definition of milk or milk product, no label, commercial document, publicity material or any form of advertising or presentation may be used which “claims, implies or suggests that the product is a dairy product”, even if the product’s traditional name is listed among the exemptions.
Judgment of the Court of Justice of the European Union dated 14 June 2018 in case C‑422/16
CJEU dealt with dairy terms protection in a dispute between a German consumers association and a manufacturer of products such as “tofu butter” and “plant cheese”. The association sued the manufacturer in a German court alleging unfair competition. The court seised sent preliminary questions to CJEU which CJEU said essentially boiled down to the following issue: Whether the term ‘milk’ and the designations reserved exclusively for milk products may be used to designate a purely plant-based product even if those terms are expanded upon by clarifying or descriptive terms indicating the plant-based origin of the products concerned?
CJEU held that they may not be so used. The reason is that, according to the court, such additional terms indicating plant origin cannot prevent with complete certainty a likelihood of confusion in the minds of the consumers. Accordingly, plant-based products fall under the restrictions laid down in Regulation (EU) 1308/2013, said the court.
CJEU also held that plant-based products may be allowed to be designated with dairy-related terms if such terms have been used for the products traditionally.
Commission Decision 2010/791/EU of 20 December 2010
As said, products whose names do not fall under the dairy terms restrictions are listed in Commission Decision No. 2010/791/EU of 20 December 2010. Currently the list features only one product name in Polish, and that is ser jabłeczny (apple cheese). Thus, armed with the CJEU’s ruling, the Polish government has set out to have the list expanded to include other names customarily used in the Polish market, such as:
1) coconut milk;
2) coconut cream;
3) peanut butter;
4) almond butter;
5) almond milk;
6) cocoa butter.
However, the Commission refused to include those names on the list because there is no evidence that they have been in use for at least 30 years. Why this particular time span? Because it is laid down in Regulation (EU) 1151/2012 of 21 November 2012 on quality schemes for agricultural products and foodstuffs, which says that a name is “traditional” if it has proven usage on the domestic market for a period that allows transmission between generations; this period is to be at least 30 years.
Consequences of breaching the prohibition of using dairy-related terms for plant-based products
Under Annex VII to Regulation (EU) No 1308/2013, “for the purposes of this Annex, the “sale description” means the name under which a foodstuff is sold, within the meaning of Article 5(1) of Directive 2000/13/EC, or the name of the food, within the meaning of Article 17 of Regulation (EU) No 1169/2011″.
In accordance with the Food and Nutrition Safety Act, whoever fails to comply with the food labelling requirements laid down in Regulation (EU) No 1169/2011 shall be subject to an administrative penalty of up to thirty times the average monthly wage in prior year, as published by the Polish office of statistics. This penalty may not be higher than five times the gross value of the challenged quantity of the food product concerned.
What is more, it seems a breach of dairy terms regulations may be held to amount to the marketing of what is called falsified agri-food products. Under the Agri-Food Products (Commercial Quality) Act of 21 December 2000, an agri-food product is falsified also when its composition does not comply with the applicable commercial quality requirements. Unauthorised use of dairy terms in contravention of Regulation (EU) No 1308/2013 and CJEU case C-422/16 might seemingly also be held to equal non-conformity of the product’s composition with legal requirements. On this interpretation, the business that markets the product could be subject to an administrative penalty of between PLN 1000 and 10% of its revenue for the accounting year preceding the year in which the fine was imposed.
Check what we refer to:
- Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007;
- Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004;
- Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs;
- the Food and Nutrition Safety Act of 25 August 2006;
- the Agri-Food Products (Commercial Quality) Act of 21 December 2000;
- 2010/791/EU: Commission Decision of 20 December 2010 listing the products referred to in the second subparagraph of point III(1) of Annex XII to Council Regulation (EC) No 1234/2007 [decision maintained in force under Article 230 of Regulation (EU) No 1308/2013: “references to Regulation (EC) No 1234/2007 shall be construed as references to Regulation (EU) No 1306/2013”];
- Judgment of the Court of Justice of the European Union dated 14 June 2018 in case C‑422/16.
About the author
Piotr Popielarski – legal counsel at WKB Wierciński, Kwieciński, Baehr. He deals, among others, with legal aspects of product life cycle, including quality requirements and product labeling, as well as product marketing issues, waste management and relations with market surveillance authorities.