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Veganism has soared in Europe over the past years but there is no legal definition either for “vegetarian” or “vegan” in EU law. Katia Merten-Lentz of international law firm, Keller & Heckman, looks at how regulatory clarity could come about.

03 october 2018

This article is written by Katia Merten-Lentz and published at EU Food Law

While there are no precise statistics on the number of vegans in Europe, it is estimated that 3.5 million British people and over 1.3 million Germans are now identifying themselves as such, as well as 5% of the French.

However, this increasing visibility of veganism in society contrasts with the slow pace of changes regarding the legal framework with respect to the labelling of vegan food.

Vegans try to avoid as much as possible all forms of exploitation of animals for food, clothing, or any other purpose.

In terms of food habits, it denotes the practice of staying clear from all products derived wholly or partly from animals. However, there is no legal definition of ‘vegetarian’ or ‘vegan’ in EU law, and as a result, there is no specific harmonised European legal framework for labelling vegan and vegetarian food either.

The Commission is supposed to adopt implementing acts on voluntary information related to the suitability of a food for vegetarians or vegans, but it recently stated that it will only start working on this issue in 2019. Setting up these definitions is sorely needed to ensure the validity of vegan claims and to provide for a better information of the consumer.

 

Absence of strict criteria regarding vegan food

As there is no specific dispositions on vegan or vegetarian food in EU law, the first issue regarding these labels is to determine which regulations apply to them.

Health claims and nutrition claims  are covered by an EU regulation. However, the indication ‘suitable for vegans’ on a product cannot fall within this regulation, since nutrition claims suggest or imply that a food has specific beneficial nutritional properties, which is not necessarily the case of vegan food.

This means that the general framework applies to vegan food, more specifically the provisions of Regulation 1169/2011 (also known as the “the FIC Regulation”) , which states that food information provided to the consumers must allow them to “make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations.” The main goal of this regulation is ensuring that the consumer is not mislead by the information provided on the labelling of products.

The FIC Regulation lays down the possibility of adding voluntary food information on the packaging , which means that operators can indicate on the product that it is vegan, if they respect some conditions.

The information must not be ambiguous nor confusing for the consumer, and must also be fair, particularly as to the composition and method of production . That is why the absence of a definition is problematic regarding vegan food. Due to the lack of harmonisation, private labels have multiplied, and they do not always set up the same criteria for a product to be labelled as “vegan”. Indeed, sometimes products are marketed as vegan or vegetarian while they used processing aids or additives obtained through processes involving animal products (For example xanthan gum, an additive, can be produced using a fermentation process involving whey, a dairy ingredient).

Moreover, some operators also indicate ‘vegan’ on the package while not even referring to a particular private label, therefore it is difficult for the consumer to know if the product was really obtained without any animal products.

On the other hand, the names of vegetarian and vegan food often refer to animal products – like “vegan milk” or “tofu steak” – while evidently not containing any milk or meat. This can be confusing for the consumers, and operators of the meat and dairy sectors have begun to complain about the use of these denominations.

Denominations of vegan products: the war regarding the name ‘steak’

In its judgement ‘TofuTown’ of 14 June 2017, the Court of Justice of the European Union considered that vegetal products cannot, in principle, be marketed under names such as ‘milk’, ‘cream ‘, ‘butter’, ‘cheese’, ‘yoghurt’, as EU law reserves these designations for animal products.

The Court expressly said that this helps protecting the consumers against any confusion as to the composition. It is thus now impossible to market a vegan product under the name ‘vegan cheese’ or ‘soya milk’.

The issue has never been raised before the Court regarding meat, but it has been brought up by members of the European Parliament. In May 2018, a MEP has asked the Commission what it was planning to do to prevent operators to use terms such as ‘meat’, ‘hamburger’ or ‘steak’ for referring to products that contain little or no meat.

The Commission replied that according to the FIC Regulation, food information shall not be misleading as to the nature and composition of the food, and that since term ‘meat’ was already defined in EU law , it could thus not be used for a product that does not contain any meat. However, the Commission did not say anything about fighting the use of other denominations.

Indeed, words like ‘nuggets’, ‘burger’, ‘steak’ or ‘sausage ’are not defined in EU law , so in principle they can be used for vegetal products as long as they do not mislead consumers about their nature and mode of production.

The Commission will not be able to stay silent on this issue for much longer because in an even more recent parliamentary question , Mara Bizzotto (ENF) asked if the Commission was considering granting special protection for sales denominations of meat-based products against the “growing unfair competition from vegetarian and vegan products which imitate their appearance and labelling”.

Ms Bizzotto stressed that more and more food products for vegetarians and vegans are marketed in such a way as to suggest that they are ‘substitutes’ for meat-based products, even though their ingredients and nutritional contents are completely different.

Therefore, it seems that the future discussions on the matter will have to determine if there is a real possibility of confusion in the mind of a consumers between a ‘soya steak’ and a normal beef steak.

The Commission has yet to reply to this latest parliamentary question, and its answer is becoming more and more necessary in order to harmonise this issue.

Indeed, Member States are starting to take the matter into their own hands, which could hinder the free movement of vegan products.

France recently passed an amendment to its agriculture bill that prohibits any product that is largely based on non-animal ingredients from being labelled like a traditional animal product. While the reform is not adopted yet, it is thus probable that names such as ‘vegetable steak’ or ‘soy sausage’ could be banned in French territory soon, making the need of a consensus at the EU level an even more pressing issue.