On 23 October 2020, Members of the European Parliament (MEPs) rejected proposed Amendment 165 to the EU’s common agricultural policy restricting the terms steak, sausage, escalope, burger, hamburger and those terms related to poultry items and cuts for use exclusively in connection with products made from animal products. This was excellent news for vegan and plant-based food manufacturers. MEPs also voted on and accepted proposed Amendment 171concerning the existing restrictions over labelling of dairy products. Unfortunately, some press and media have been misrepresenting the practical outcome of this. They’ve been describing these outcomes as an EU “giveth and taketh away” situation, when it’s simply not the case. Amendment 171 will now be considered by the EU Commission and Council.
Dairy labelling regulations already exist and have existed since 2010! I talked about this with The Vegan Review in June of this year. As a side note, these regulations actually have a much older history, dating even to the early years of the EU, but this isn’t an EU history piece.
How does the EU define milk?
EU law defines what is milk. It means “exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom.” (Annex VII, Part III, Article 78 of Regulation No 1308/2013.This regulation is the current iteration of the EU’s common agricultural policy)
For this piece, and because the definition uses the term mammary secretion, I’ll refer to milk as mammary milk instead of, as I normally would, dairy milk. We’re talking about definitions here, so it seems an appropriate shift in terminology. And perhaps it’ll be a useful reminder of mammary milk’s true purpose to feed the young of a mother’s species.
Under EU rules, products including whey, cream, butter, buttermilk, butteroil, caseins, cheese and yogurt can’t be made of anything other than mammary milk as defined above.
What are the exceptions?
There are exceptions to this rule. These are for products which generally and traditionally have included these terms despite not being made of mammary milk. Each EU country can specify what those products are and they’re an interesting list grouped by language. The English exceptions are:
“Coconut milk, ‘Cream …’ or ‘Milk …’ used in the description of a spirituous beverage not containing milk or other milk products or milk or milk product imitations (for example, cream sherry, milk sherry); Cream soda; Cream filled biscuits (for example, custard cream, bourbon cream, raspberry cream biscuits, strawberry cream, etc.); Cream filled sweets or chocolates (for example, peppermint cream, raspberry cream, crème egg); Cream crackers;
Salad cream; Creamed coconut and other similar fruit, nut and vegetable products where the term ‘creamed’ describes the characteristic texture of the product; Cream of tartar; Cream or creamed soups (for example, cream of tomato soup, cream of celery, cream of chicken, etc.);
Horseradish cream; Ice-cream; Jelly cream; Table cream; Cocoa butter; Shea butter; Nut butters (for example, peanut butter); Butter beans; Butter puffs; Fruit cheese (for example, lemon cheese, Damson cheese).” Annex I of 2010/791/EU
If an EU member country wants to add a traditional product to their list, they have to notify the EU Commission and go through a process.
Dairy goes after non-dairy producers – the TofuTown case
I presume these labelling rules weren’t well known to producers of vegan and plant-based products until 2017, when the European Court of Justice (ECJ) ruled against German vegan products manufacturer, TofuTown. In that case, the ECJ confirmed terms such as soy milk or tofubutter don’t fall under the specific exemptions. They’re literally not there in the list, reasons the ECJ, and Germany hadn’t requested for those terms to be added. The ECJ used simple logic, really.
For TofuTown and all other vegan and plant-based food producers, the practical effect of this decision was to change the names of their products, packaging and marketing. These aren’t small things to deal with, especially for small, independent manufacturers. Since then and in the EU, manufacturers of vegan milks, butters, creams, etc., can’t market their products using terms such as milk, butter and so on. These regulations are for manufacturers, not for supermarkets or cafes, shops or individuals. We can and do call milk, cheese, butter or cream whatever we want to call them. So, soy milk will forever be soy milk in daily life.
Why might dairy be clamouring for protected terms?
The reason it took until 2017 for someone to challenge a soy products manufacturer could likely be due to increased competition. In the last decade or so, consumption of liquid milk has been decreasing. I dedicate some space to this discussion in a forthcoming book, Think Like a Vegan, published by Unbound, so I won’t go into it in detail here. In addition, vegan and plant-based products have been increasing in popularity and the accepted method of distinguishing these from their mammary milk counterparts was to add qualifiers such as soy or almond milk or soy butter or milk replacement and the like. Whilst the market for these products was niche, no one was bothered.
Germany is the leading producer of dairy in the EU and dairy is the second largest agricultural sector in the EU, so there is much money at stake. In addition, Germany has an unfair competition law which protects other market participants or competitors in relation to infringement of statutory provisions intended to regulate market behaviour (like this one). This law made the legal challenge possible and provided another anchor for the ECJ’s ruling. All the elements were there for the ECJ to rule against TofuTown.
What does the proposed amendment actually do?
The vote for proposed Amendment 171 concerning dairy labelling simply codifies what the rules have been since the TofuTown decision in 2017. Since that decision, vegan and plant-based food manufacturers can’t market their products in the EU using the forbidden mammary milk words, whether alone or coupled with a qualifier, and today they still can’t. The proposed amendment specifies the qualifiers as “style”, “type”, “method”, “as produced in”, “imitation”, “flavour”, “substitute”, “like” or similar. Vegan and plant-based food manufacturers are already following these regulations or they should’ve been. For example, look at your oat milk carton – nowhere does it say oat milk. Nothing has changed as a result of this amendment! You’d think the press and other media would want to get this right because it’s overall good news for vegan manufacturers.
It’s astonishing none of the press I’ve seen about this vote discusses the reality of the existing regulations. They’re all going for the outrage-of-the-week angle. It’s shoddy and irresponsible reporting. And if you’re about to say, “well they don’t know about court cases in 2017,” I’ll say, they didn’t even need to read those. The official press release describes the result of the mammary milk vote as “follow[ing] the ECJ ruling that has determined that the terms ‘milk’, ‘yoghurt’ and ‘butter’ only apply to genuine dairy products, banning terms like ‘almond milk’.” And the very last line of that press release is “[n]othing will change for plant-based products and the labels used for their sale.” And that’s the real kicker. The last line tells you all you need to know. And so many missed it.
Where might we go from here?
The real story the media could’ve focused on, instead of confused information, is why aren’t we lobbying our national representatives and MEPs to add more vegan and plant-based products to the exempted list? After all, soy milk, for example, has been used in Europe at least since the 1970s. Or even better, to modernise the definition of milk? Those are political and economic fights worth fighting.