In short, in matters vegetable, animal, and mineral, the modern répertoire of meat-substitute products is expanding. According to the ECJ in its recent decision C-438/23 Protéines France, French Decree 2022-947 ('Decree 2022') banning the use of 'meat vocabulary' in meat substitute products was declared inapplicable. Concurrently, the Italian Government, as well as the Italian agricultural associations went on a ‘crusade’ against the Nutri-Score as well as prohibiting all manner of so-called lab-grown meat, not just for Italian products, but imports from the entire EU. This contribution builds on a previous blogpost from last year covering the French and Italian measures on banning meat-related names for vegetable-protein products. Then, the Conseil d’État requested a preliminary ruling on the French measures, while Italy’s proposed measures were still waiting the Commission’s approval. In this post, the Court’s decision in Protéines France is analysed, together with the AG’s Opinion, with the emphasis on the measures aimed at protecting the names of meat products by excluding all non-meat products from using ‘meat-vocabulary’ in marketing. The second part deals with the Italian total prohibition of the so-called lab-grown (also cultivated) meat and the wider consequences of this action. Are such measures truly adequate to protect the consumer and above all, are they even permissible under EU law?
France – Hands off our meat!
In October 2022, a new French law took effect, banning the use of meat-related terms to describe or market plant-based products that serve as meat substitutes. Decree 2022, issued on June 29, 2022, by the French Ministry of Agriculture, applies to all food products made in France that contain vegetable proteins. Since the start of the preliminary ruling procedure in July 2023, which led to the court challenge discussed below, the French Government amended the original Decree of 2022 with a new Decree 2024-144. This adds clauses to respect the Internal market imperatives on imported goods – avoiding any considerable barriers to trade and competition. Thus, the French Decrees are, as far as the mutual recognition doctrine is concerned, fully compliant to EU law and are merely a stricter product requirement for French products (Barnard, p. 566). Despite these adjustments, the French measures had wide-reaching effects, prompting vegetarian associations to challenge Decree 2022 in a national court. The case eventually reached the Conseil d’État, which referred two sets of questions to the ECJ regarding the harmonisation of consumer protection laws related to the misleading use of animal-based names for plant-based products, and whether Member States can enact national regulations on this issue.
In the Protéines France case, the relevant piece of EU legislation is Regulation 1169/2011 on the provision of food information to consumers (‘Regulation 1169/2011’), which harmonises food information to consumers, in particular food labelling. In it, the EU legislator has harmonised the naming of food products with three concepts: a legal name (through an EU or national provision), a customary name (accepted by consumers and needing no further explanation) and a descriptive name (an additional element to distinguish product A from product B). Additionally, Articles 17 and 38 of the Regulation play an important role, allowing Member States to establish their own legal names, if EU law does not prescribe them already. Additionally, Article 17 imposes the obligation on operators to use such legal names, if they exist.
This Regulation, based on Articles 114 and 169 TFEU, prevents Member States from introducing their own legislation, as agriculture, the Internal market, and consumer protection fall under shared competences and the EU has already harmonised this. Indeed, this was the contention of the applicants in this case – whether the EU already harmonised the way meat-alternative products are labelled, and if not, whether France could have then lawfully introduced Decree 2022.
AG’s Opinion in C-438/23
On the 5th of September, AG Ćapeta delivered her Opinion, which supports the French position. She concludes with the French Government and emphasises that, since EU law does not prescribe legal names for meat or meat substitute products, Member States may do that through national legislation. There are however, two hurdles to overcome. The first being the French argument of protecting consumers through national measures and the second one being the question whether Decree 2022 effectively establish legal names.
On the first point, Regulation 1169/2011 must be closely analysed. The preamble specifically emphasises the high level of consumer protection, which is achieved through this harmonisation. Accordingly, Article 7 provides clear instructions on what fair practices are and among these, naming of food products. This way, the EU has addressed the question of consumer protection, through the direct applicability of the Regulation, by setting the rules for business operators (para. 44). In other words, the ‘matter – that operators have the obligation to provide non-misleading names – is, as claimed by the Commission, specifically harmonised by Regulation 1169/2011’ (para. 46). France has therefore no manoeuvring space to enact its own legislation, due to the Regulation, which precludes the use of misleading names (Article 7) and demands the use of legal names, if such exist (Article 17).
Secondly, the AG poses a valid question, which is also pointed out by the intervening Italian Government: What qualifies as a norm, which would prescribe legal names? Regulation 1169/2011 allows Member States to enact own legislation to establish legal names. It is however silent on the reasoning and the specifics of these measures. What the Italian Government argues is effectively; if Member States can prohibit the use of certain names for products, then this can per se be viewed as an equivalent to establishing legal names (without expressly stating that) (para. 95). By drawing the comparison to the C-422/16 TofuTown, where EU rules for naming milk products do exist (Regulation 1308/2013), the French rules refer to names actually used – and reserved – for meat products. This would turn these French rules, according to TofuTown, into norms setting legal names for meat products. AG Ćapeta indeed interprets the French Decree 2022 as establishing legal names for certain meat products (para. 86).
In conclusion, the AG answers the questions posed by the Conseil d’État as follows: Firstly, Regulation 1169/2011 precludes Member States from deciding which names for food products are misleading. Secondly, Member States are allowed to establish legal names for certain foods in general terms. In conclusion, this would mean that the French measures do not infringe EU law, since they are objectively not consumer protection measures, but rather national rules setting legal names which is permissible in the absence of relevant EU rules.
C-438/23 Protéines France – the French dreams get butchered
At the beginning of October 2024, the ECJ published its decision in the matter. Leaving the procedural and penal aspects of the decision on the side, the Court’s decision departs significantly from the conclusions of the AG. In its reasoning, the court focused on two aspects: firstly, the French decree does not establish legal names and secondly, Regulation 1169/2011 expressly harmonises the use of common and descriptive names to protect the consumers.
Turning to the first aspect, the Court disagrees with the AG, specifically regarding the application of the TofuTown case law to the present case. In TofuTown, the rules defining milk products were precisely defining the requirements of products and establishing that ‘milk’ is exclusively reserved for ‘products of normal mammary secretion’ (para. 76). Since this could be considered as a legal name, in accordance with Article 17 Regulation 1169/2011, every other name (customary and/or descriptive) was precluded from using milk-related names, even with supplementary or explanatory additions (para. 77). In C-438/23 however, the French Decree contains no definition or requirements for products bearing meat-related names, meaning no rules – in a legal positivist sense – exist. In other words, precluding the usage of meat-related terminology for certain products without specifyingclear criteria for what qualifies as ‘meat’, such as the composition of such products, is fundamentally different from the context of TofuTown, making that jurisprudence accordingly inapplicable (paras. 72 and 73). Having stated that, the Court concluded that the French decree does not establish legal names in terms of Article 17 Regulation 1169/2011.
The ‘legal name’ trick forces us to proceed systemically along the structure of Regulation 1169/2011 and to consider the French decree as regulating customary or descriptive names – the second aspect of the Court’s reasoning. The Court agrees with Association Protéines France and another applicant, that the Regulation duly harmonises rules on customary and descriptive names on an EU-level. In other words, a national measure (which does not prescribe legal names) cannot regulate the usage of common and descriptive names, especially with a general and abstract prohibition. If it does, it infringes EU harmonisation law (paras. 80-84),
The French Government also suggested that Regulation 1169/2011 does not cover situations where the entire composition of a foodstuff is changed (e.g., replacing meat with vegetable protein in ‘veggie meat’ products). They claimed that such situations are not harmonised by the Regulation, allowing France to legislate nationally. The Court disagreed with this argument. It determined that Regulation 1169/2011, specifically Article 7(1)(d), does apply to these situations. Article 7(1)(d) prohibits misleading food labels, including those that suggest the presence of an ingredient that has been replaced. Thus, the addition of, for example, the word ‘vegetable’ to a meat product name provides the necessary clarification to avoid misleading consumers (Annex VI to the Regulation 1169/2011, para. 94). By interpreting the Regulation to include these situations, the Court concluded that the matter is harmonised at EU level (para. 60). In this point, the Court agrees (para. 92) with AG Ćapeta.
Spicing up the agenda?
The conclusions of the Court are clear: firstly, the French measure does not introduce legal names, secondly, the naming of vegetable-protein substitutes for meat is harmonised on an EU-level through Regulation 1169/2011 and thirdly, Member States cannot regulate or prohibit the use of common (or descriptive) meat-related names for meat-substitute products. The impact of the Protéines France case has already made waves in French society, with McDonald’s introducing ‘McPlant Nuggets’ in partnership with one of the companies involved in the case.
This will inevitably stir the emotions of farmers and meat producers, due to the competitiveness and financial questions faced by the EU and the farmers, with the upcoming EU budget talks. In a rather refreshing manner, in A. Ford’s words: the manure has finally hit the fan. With farmers’ organisations rampant across the EU, from Italy to Belgium, this might prove to be political dynamite, together with the related topic of lab-grown meat.
Patria, vittoria, onore – why do Italians hate lab-grown meat
The words from I puritani, ‘The Puritans’, by Vincenzo Bellini summarise the sentiment of the many stakeholders, among them the belligerent Coldiretti - the largest farmer union in Italy and third largest in Europe. They are the main advocate for stringent rules on meat-substitute products in Italy, aiming to not just ban them before even entering the market but also to enable imposing massive fines for violators. The corresponding piece of Italian legislation, Law Nr. 172/2023, establishes a total prohibition and production of food produced with tissue-derived cell cultures (also known as ‘lab-grown’ meat) in Article 2. Article 3 follows the French example of prohibiting the use of ‘meat-related’ names for vegetable-protein products. In a sense, the Italian measures go even beyond the French, by extending the regulation of alternatives to traditional meat produce.
As this presents a product requirement in the sense of Article 34 TFEU i.e. ‘measures having equivalent effect to quantitative restrictions’, which can significantly impede the functioning of the Internal market, the Italian Law needed to be approved by the Commission in the so-called TRIS procedure. Italy adhered to TRIS and suspended all legislative activities, until February 2024. Before the Commission could however comment on the Italian Law, Italy withdrew from the procedure and adopted the law without approval. According to the case-law of the Court, this could mean that the Italian law is automatically unenforceable. Failure to observe the procedural requirements of TRIS ‘constitutes a procedural defect in the adoption of the technical regulations concerned, and renders those technical regulations inapplicable and therefore unenforceable against individuals’ (C‑307/13 Ivansson, para. 48).
Additionally, the Italian measures likely constitute a direct and indirect obstacle to the free movement of goods between Member States (infringing Article 34 TFEU), by not including the principle of mutual recognition to products containing plant protein which are or will be lawfully marketed in other Member States (Lithuania’s opinion during the TRIS procedure).
Why is this Law Nr. 172/2023 so important? It plays a symbolic role in protecting the agri-food heritage, as a set of products that express Italy’s socio-economic and cultural evolution (Article 1). And the Italian Government is not alone in this fight. In January 2024, Austria, France and Italy presented to the Council a Note on safeguarding high-quality and primary farm-based food production. Among several questions, ranging from ethical, economic, sustainability to legal, this note points out that the Novel Foods Regulation (Regulation (EU) No 2015/2283) does not adequately address the lab-grown meat query. ‘Novel food’ means, among other definitions, food consisting of 'isolated from or produced from cell culture or tissue culture derived from animals (Article 3(2)(a)(vi)). Recital (20) of this Regulation states that novel foods ‘should not mislead the consumer’. This focuses only nutritional values and does not address any cultural or societal aspects of the original food. This means that the Novel Food Regulation is based on an entirely objective scientific approach – which falls short of taking other aspects, such as culture and environment, into account.
While essentially a more reserved message, the Note calls upon the Commission to reconsider its approach to novel foods, with a more wide-spread public discussion and a pre-market impact assessment. The appellant Member States argue that there are pressing green-washing concerns, as well as questions about the food sovereignty and autonomy of the EU (p. 3-5).
Regarding green-washing, further research might be required to comprehensively assess the environmental balance of lab-grown meat. Initial studies have clarified some of the 'environmentally positive' claims from cultered (i.e. lab-grown) meat. They suggest that the production of cultured meat leads to air pollution driven largely by CO2, instead of CH4 and N2O, emissions. Despite reducing CH4 and N2O emissions, research suggests that overall effects would be similar to traditional methods of producing meat.
The Italian Government is seen as the principal player in this battle to oppose lab-grown meat. Since the first application for lab-grown meat is currently at the EFSA, the pressure is mounting on Prime Minister Meloni. As a matter of national pride and national interest, Meloni insists that “the Government has defended farmers and contested the wrong choices imposed by the European Commission from the very beginning” (Speech to the agricultural representatives on the 9th of February 2024). From the farming industry’s perspective, a possible approval of lab-grown meat would be interpreted as a heavy blow to their financial demands, since investments would shift from the traditional farming model to a new and developing industry. This could not only reduce the competitiveness of the traditional farming model, but also increase prices for consumers, since lab-grown meat would require mass production to become a financially feasible alternative.
Conclusion
With the Court’s decision in Protéines France, it would appear that the meat-alternative industry has an ally in Luxembourg and might have an ally in the EFSA, if the foie gras application is approved. But with fierce opposition from Member States with such a rich and renowned cultural and gastronomic heritage, it is difficult to say who emerges victorious out of this. Even if the recent surveys suggest that the average consumer is prepared to support vegetable alternatives to meat, or even lab-grown meat, the question of the farmers persists. With great ambitions in the meat-alternative industry and promises of economic success, it would be pertinent to ask if the EU ‘Fit for the Future’ strategy is too idealistic and detached from reality. While the Italian law clearly violates TRIS rules, its symbolism is pungent. But perhaps looking at it contextually, rather than as an eccentric legislative crusade, it shows the deep societal divisions, regarding the meat-alternatives debate. Finalmente, the Italian agriculture minister Lollobrigida’s statement that “a world in which children think that chickens are born in refrigerators or that meat grown in a laboratory is better than that which grows on a free meadow” may seem unsettlingly dystopian to many.
David Nagode is in the final stages of his LL.M. studies in European and international commercial law at Ludwig-Maximilians-Universität in Munich, building upon his undergraduate studies at the Faculty of Law in Ljubljana and the University of Utrecht. Among his research field are topics regarding the Internal Market, consumer protection and constitutional law. Currently his research is focused on the democratic aspects of the EU Governance framework.
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