French Act on Transparency of agricultural and food products – Ban of “animal” terms on plant-based alternatives

On 5th June 2020 France notified to the EU Commission via TRIS system the “Act on the transparency of information on agricultural and food products“. France deemed that the measure won’t have a significant impact on international trade or the internal market. Therefore, lacking any reference to the mutual recognition principle, we assume it will be applicable only in France and for domestic produced/marketed products: not for products legally manufactured or marketed in other EU Member States.
 
Otherwise, this will be another blow to the EU common market, which is already struggling with several country of origin labeling bills and diverging laws, especially – but not only – in countries like Italy, Greece, Finland, Romania and several others. COVID-19 is clearly showing how disrupt food supply chains is not particularly a good idea. But what cannot made undone by the nature [legal conventions], can be easily unmade by politicians looking for easy consensus* [*any reference to Brexit or recent political events is fortuitous].
Smooth intra-EU trade would be an invaluable asset in the next couple of years, when we shall hope for a steady recovery of a devastated economy, which will be exposed in full in the last months of 2020 and at the moment is not yet perceived in its real magnitude.
 
About the French proposal, let’s have a brief look at the main articles:
 
Article 1 [E-commerce] provides for the making available to the public online, by the person responsible for marketing, information on prepackaged foodstuffs. A decree will specify the place of provision and the format of the data, so as to constitute an open database accessible to all users and to allow free reuse of this data.
 

Article 2 [COOL on cocoa and honey] provides for the indication of origin of cocoa for cocoa products, in the raw or processed state, and, as of 1 January 2021, the labeling of the origin of honey in blends and of royal jelly, in descending order by weight. About honey, is interesting to note that:

‘For honey composed of a blend of honeys from more than one Member State of the European Union or from a third country, all the countries of origin of the harvest are shown in descending order by weight on the label. ‘The third paragraph also applies to royal jelly.

This obligation goes beyond the ones imposed by the EU Council Directive 2001/110, which allows indications like:

— ‘blend of EU honeys’,
— ‘blend of non-EU honeys’,
— ‘blend of EU and non-EU honeys’;

Italy tried in the past to introduce the same obligation, but was forced to step back in line by the EU Commission.

Article 5 [vegetal substitutes] prohibits the use of names used to indicate foodstuffs of animal origin, to describe, market and promote foodstuffs containing vegetable proteins, beyond a threshold which will be set by decree.

“The names used to indicate foodstuffs of animal origin shall not be used to describe, market or promote foodstuffs containing vegetable proteins. A decree shall set the proportion of vegetable proteins beyond which this name is not possible. This decree shall also define the procedures for the application of this Article and the sanctions incurred in cases of non-compliance.’

Article 6 [farmhouse cheese] establishes that the designation ‘fromage fermier’ [farmhouse cheese] may be maintained for cheese matured outside the main manufacturing establishment, in particular for small farm producers, subject to clear consumer information.

Article 8 [PDO/PGI wines] makes it compulsory to inform consumers of the origin or name of the PDO/PGI of wines sold in bottles, pitchers or glasses by restaurants, bars or other operators of licensed establishments.

Article 9 [Beer] provides that the name and address of the manufacturer are compulsory on beer labeling.

This last provision matches the Italian one (Legislative Decree 145/2017), issued with regards to all kind of food produced and marketed in Italy. Also if truth to be told, the Italian Decree shall be deemed as not applicable, since never concluded the TRIS notification procedure…

The French proposal has been deeply criticized by the European Vegetarian Union for formal and substantial reasons (see link), that here I summarize:

  1. The Act was notified in the TRIS process on 5 June, with the standstill period running until 7 September. It has therefore become law within the standstill period, which makes it difficult for stakeholders, the European Commission, and other Member States to assess the law and table observations.
  2. The Law was adopted while the reform of the Common Agricultural Policy (CAP) is considered in the EU legislature. The reform package includes considerations of establishing European rules for product denominations of plant-based foods that overlap with the provisions of Article L 412-10 Code de la consommation (as amended). We believe national solo efforts should be put on hold until such time as the acquis communautaire provides for solutions applicable across the internal market.
  3. Tradition is that plant-based meat alternatives can bear ‘meaty’ names as long as their non-animal origin is made plain. The French Law claims to defend tradition in food markets but in fact does the opposite: it breaks with tradition. The use of product denominations such as ‘vegetarian schnitzel’ and ‘vegan tofu sausage’ for food containing vegetable proteins is well established and has been used in the internal market for decades, and has not caused significant complaints from either consumers or traders. Because the vegetarian nature of meat alternatives is important in terms of generating sales, producers and retailers communicate it clearly on the packaging. Consumers are not misled by the use of ‘meaty names’ for vegetarian alternatives. ‘Meaty names’ for vegetarian alternatives to meat products convey important information about what consumers can expect from a product. These denominations guide consumers in their purchase decisions in a straightforward way. If meat alternatives needed to be given new, non-established names, customers would require information on appearance, taste, texture, preparation, etc. in the form of additional text and pictures on the packaging. This would – for no plausible reason – overcomplicate the purchase process for consumers and limit their ability to make their own purchase decisions.
  4. Article L 412-10. C.Cons., by establishing insular French rules in the midst of the internal market, creates an obstacle to intra-community trade by obliging traders to change their labels in order to meet the requirements of the French market. Ever since the landmark ruling of Cassis de Dijon more than 40 years ago, this has been considered an infringement of the Free Movement of Goods provisions of the Treaty.
    Given the importance of the French initiative and the consequences it has for the functioning of the internal market, we strongly advise considering the draft at the level of the Standing Committee on Plants, Animals, Food and Feed (SCoPAFF) at the next possible opportunity.

The Vegetarian Union has certainly a point in stating that “meaty” names on plant-based alternative are traditionally used on the market and understood by consumers, since terms like “burger” or “sausage” as of today do not enjoy a legal protection under EU rules (differently from milk-related terms under Reg. EU 1308/2013).

The same if we look at the “formal” observations, since the Court of Justice traditionally considered as non applicable technical rules not notified under TRIS procedure (or which do not conclude successfully the procedure).

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