#ECJ: I can’t believe it’s not butter

The European Court of Justice has ruled that Germany-based TofuTown, which makes such popular products as Soyatoo Tofu Butter, Veggie Cheese and other vegetarian and vegan  foods cannot use designations associated with animal products.

The Verband Sozialer Wettbewerb, a German association whose responsibilities include combating unfair competition, takes the view that promoting those products infringes the EU legislation on designations for milk and milk products.

Consequently, it brought an action against TofuTown for a prohibitory injunction before the Landgericht Trier (Regional Court, Trier, Germany). However, TofuTown considers  that  its  advertising does not infringe the relevant legislation. It argues that the way in which consumers understand those designations has changed considerably in recent year. Moreover, it does not use designations such as ‘butter’, or ‘cream’ on their own, but always in association with words referring to the plant origin of the products concerned, such as ‘tofu butter’ or ‘rice spray cream’.

In that context, the Landgericht asked the Court of Justice to interpret the relevant EU legislation.

In today’s judgment, the Court observes that, in principle, for the purposes of the marketing and advertising in question, the  relevant legislation reserves the term  ‘milk’ only for milk of animal origin.

In addition, except where  expressly  provided that legislation reserves designations like ‘cream’, ‘chantilly’, ‘butter’, ‘cheese’ and ‘yogurt’ solely for milk products, that is products derived from milk.

The Court concludes that the designations set out cannot be legally used to designate a purely plant-based product unless that product is mentioned on the list of exceptions, which is not the case for soya or tofu.

The Court explains that the addition of descriptive or clarifying additions indicating the plant origin of the product concerned, such as those used by TofuTown, has no influence on that prohibition.

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