Vegan Sausages, Steaks and Schnitzels? – A “piping hot” decision by the ECJ

In our article, we look at how the ECJ reached its decision and the implications for the labelling of plant-based foods.

We would like to take this opportunity to thank Felix Klein, who joined us during his legal clerkship, for his great support with this article.

1. The legal framework

Articles 7, 17 and 38 of, and point 4 of Part A of Annex VI to, the Regulation are central to the decision.

When it came into force in 2016, the Regulation harmonised food labelling across Europe. It imposes general labelling and minimum information requirements on food business operators at all stages of the food chain, insofar as their activities relate to the provision of food information to consumers. This includes, in the first instance, those under whose (business) name a food is marketed or by whom a food is imported into the Union. However, secondary obligations may also apply to wholesalers and retailers.

The “legal name” is considered to be the core of the Food Regulation, by which a food must be designated in accordance with Art. 17(1) of the Regulation. According to Art. 2(2)(n) of the Regulation, a name of a food is to be regarded as the “legal name” if it is prescribed in Union provisions or, in their absence, the name provided for in the laws, regulations and administrative provisions of the Member State in which the food is sold. If there is no such legal name, either the customary name or a descriptive name may be chosen, which can convey the nature of the food to consumers and distinguish it from confusingly similar products. According to Art. 9(1)(a) of the Regulation, the indication of “the name of the food” is mandatory.

In addition to prohibiting misleading food information, which includes the name, Art. 7 of the Regulation stipulates that food information shall be accurate, clear and easy to understand for the consumer.

Point 4 of Part A of Annex VI to the Regulation provides for a special labelling obligation if, in the case of foods in which a component or ingredient that consumers expect to be normally used or naturally present is replaced by another component or ingredient, the label must clearly indicate the component or ingredient that has been used for the partial or whole substitution.

The provisions of the Regulation apply directly in all EU Member States and can be supplemented and specified by national provisions. However, Article 38(1) of the Regulation contains an important harmonization provision, according to which the Member States may not provide for national provisions with regard to the aspects specifically harmonized by the Regulation, unless this is permitted under Union law.

It is precisely this harmonization effect of the regulation that the ECJ has now confirmed in its decision.

2. Facts and course of proceedings

The case concerned a French decree from the year 2022 (No. 2022-947 of June 29, 2022), which prohibited the use of names for meat, sausage or fish products for processed products containing vegetable proteins. It also stipulated that the names for foods of animal origin listed in the annex may not be used to describe, market or advertise foods if a maximum proportion of plant protein (0.5 - 7 %) specified for the respective products was exceeded. For example, this applied to the terms “Bacon”, “Salami”, “Nuggets” and “Mettwurst” as well as the French term for “Schnitzel”.

Associations and companies that advocate or produce foods based on vegetable proteins filed actions for annulment against this decree with the competent French Conseil d'État. These included the US company Beyond Meat Inc, which sells plant-based products such as “Beyond Beef”, “Beyond Sausage” and “Beyond Meatballs”. The actions, which the Council of State brought together in a single action, were based in particular on the argument that the Decree infringes several provisions of Regulation (EU) No. 1169/2011.

After the Council of State had already suspended the enforcement of part of the decree in a preliminary injunction proceeding, it suspended the main proceedings and referred four questions to the ECJ for a preliminary ruling.

In the meantime, another French decree was issued in 2024 (No. 2024-144 of February 26, 2024), which repealed the 2022 decree, but essentially maintained its regulatory content.

3. The decision of the ECJ

After the ECJ accepted the admissibility of the request for a preliminary ruling despite the second, annulling decree from 2024 , it concluded that

• Articles 7, 17 of, and point 4 of Part A of Annex VI to, the Regulation protect European consumers from being misled by food names that are not “legal names” and are made up of terms from the butchery, charcuterie and fish sectors if these designations are used to describe, market or promote foods that consist (entirely) of plant proteins instead of proteins of animal origin;
• this protection against misleading information in accordance with Art. 38(1) of the Regulation represents a special harmonization for all EU member states, which prevents the adoption of national provisions that regulate or prohibit the use of names other than “legal names”;
• This preclusion of national legislative competence also includes the adoption of a national measure setting the proportions of vegetable proteins below which the use of names, other than “legal names”, consisting of terms from the butchery and charcuterie sectors to describe, market or promote foods containing vegetable proteins is still authorised;
• Member States retain the freedom to lay down national provisions that are in conformity with the prohibition of misleading uses by the Regulation and to impose administrative sanctions.

The ECJ arrives at these conclusions by first examining whether the harmonising effect of the Regulation intended by Art. 38(1) of the Regulation also covers the matter governed by the Decree. To that end, it first analyses the regulatory effect of Articles 7, 9, 17 of, and point 4 of Part A Annex VI to, the Regulation. The Court finds that it can be summarised as follows (para. 61 f.):

“First, foods must bear a name. Second, that name must be a legal name or, in the absence of such a name, a customary name or, failing that, a descriptive name. Third, that name must be precise, clear and easily understood by consumers. Fourth, the said name must not mislead consumers, in particular as regards the characteristics of the food concerned, which include its nature and composition, and as regards the substitution of naturally occurring components or ingredients normally used with different components or ingredients. Fifth, such requirements must be complied with in the marketing and promotion of any food.”

After the Court establishes in a next step that no EU regulation provides for a legal name for products based on vegetable proteins in the present case, it examines whether such a legal name was introduced by the French decree (para. 68 et seq.). This would be the case if a specific name is assigned to a particular food.

In this context, the Court addresses the submissions of the Italian Government, which during the proceedings stated that, since the Member States in the absence of provisions by the EU are competent to establish legal names, they must be able to use their regulatory powers to determine, in a negative manner, when the use of certain names for certain foods is prohibited. In its reasoning the Italian government relies on the “TofuTown.com” decision by the ECJ (judgment of June 14, 2017, C-422/16, ECLI:EU:C:2017:458).

The ECJ does not follow this argument because, firstly, the adoption of measures providing that foods must comply with certain conditions in order to be designated by a certain name is not equivalent to adopting measures prohibiting the use of certain terms, not legally defined by those measures, to designate foods with certain characteristics (here: their composition by the kind of protein). Secondly, the “TofuTown.com” decision does not contradict this assessment; on the contrary, the findings made there cannot be applied in this case. This is because that case dealt with the requirements of the names “milk” and “milk products”, which are positively prescribed as “legal names” by Union regulation, and their incompatibility with purely plant-based products, whereas neither Union law nor national definitions under French law exist for the terms from the butchery, charcuterie and fish sectors covered by the French decree at issue here.

The Court therefore comes to the conclusion that the decree does not establish a “legal name” within the meaning of Art. 17(1), 2(2)(n) Regulation, but concerns the question of which “customary name” or “descriptive name” may not be used to designate foods based on vegetable proteins.

However, in contrast to the “legal name” (Art. 2(2)(n) Regulation), the Regulation does not leave the Member States any leeway for the adoption of such provisions for the “customary name” or “descriptive name” (Art. 2(2)(o) and (p) Regulation). According to the ECJ this can also be explained by the fact that a name can only be considered “customary” if consumers recognise that name as specifically designating the product to which it is attached according to everyday language, usage, habit, tradition and custom. In order for a name to be considered “descriptive”, it must be able to convey the main characteristics of the food it designates. According to the ECJ, these functions cannot be described in abstract general terms by national authorities.

According to the ECJ, national legislators do not need to prevent the possibility of consumers being misled in relation to plant-based foods by enacting abstract general prohibition standards, since point 4 of Part A of Annex VI to the Regulation already provides for a specific harmonised regulation on labelling obligations in the case of (complete) substitution of food components or ingredients.

In response to the third question, the Court also held that the harmonisation effect previously established does not deprive the Member States of the possibility of imposing administrative penalties for infringements of the provisions of EU law or of national provisions consistent with those provisions. On the other hand, the setting of maximum percentages of vegetable proteins, as provided for in the French decree on “customary” or “descriptive names”, jeopardises the uniformity of EU law.

4. Significance of the ruling and practical advice

The ECJ decision rejects the mere prohibition of food names such as “Vegan Schnitzel” by individual EU Member States and clarifies the scope of the harmonising effect of Regulation (EU) No. 1169/2011 in food labelling law:

Member States are required to establish in positive law, by means of a clear profile of requirements, whether a food must meet certain conditions in order to be allowed to be designated by a particular name. They are permitted to determine “legal names” where the Union legislator has not itself prescribed such a name, as is the case for “milk” or “milk products”, for example. However, they are not allowed to define in a negative manner - for example, by setting protein limits - which products consumers would not normally expect to be covered by a name, or which terms may not be used descriptively, as this would conflict with the harmonisation by Union legislation.

The Court's clear and consistent preliminary ruling is to be welcomed as a sound interpretation of the Regulation. While the reactionary may still consider terms such as “Vegan Schnitzel” to be an oxymoron, the ECJ - by confirming the decoupling of the elements of “customary” and “descriptive” from abstract general regulations of individual Member States - leaves room for the emergence of new consumer habits with regard to the designation of foods. Consumers who prefer plant-based products to comparable meat products due to environmental, ethical or health reasons may be signalled by the use of a customary or descriptive food name from the meat sector that it is a comparable plant-based product. Consumers who wish to consume the products containing animal protein must, like everyone else, study the labelling on the packaging. Any resulting confusion will have to be assessed individually by the courts of each Member State, but the EU legislator has set a sufficient standard of assessment for misleading use in the Regulation, which Member States therefore cannot determine themselves.

However, in view of the various national (legal) policy efforts, it would be presumptuous to believe that opponents of plant-based substitutes for meat products will not consider all possible means and will not prescribe “legal names” for meat products in order to pursue their objectives in accordance with the present ECJ ruling (cf. Opinion of Advocate General Tamara Ćapeta, para. 21, with further references). In this respect, the Advocate General appropriately opened her Opinion with the saying “Everything has an end, only the sausage has two”. It remains to be seen whether the sausage will have more ends in future decisions.

In Germany, new Guidelines for Vegan and Vegetarian Foods with Similarities to Foods of Animal Origin were adopted on September 10, 2024 by the German Food Code Commission, which is part of the Federal Ministry of Food and Agriculture, and were published shortly after the ECJ’s ruling. They do not prescribe a “legal name” for these products, but rather provide food producers with guidance on which names can be considered customary and which cannot. This shall enable them to label their products in the most compliant way possible and minimise the risk of misleading information.

This guidance is necessary, as shown by previous proceedings in which German courts had to consider whether consumers were misled by food names in accordance with Art. 7(1), 17 of the Regulation (e.g. designation of a cashew-based product as a “cheese alternative” Higher Regional Court Celle, indicative court order of August 6, 2019 - 13 U 35/19; inadmissible designation of a salami made from turkey meat and pork fat as “poultry salami” Higher Administrative Court Münster, judgement of August 15, 2022 - 9 A 517/20).

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