Naming and Labelling of vegan and vegetarian products – it's what it says on the tin

Checklist

In short, the general principles can be summarized as follows:

 Clearly inform consumers about the vegan or vegetarian nature of the product;

 Inform customers about the main substitute(s) used in the product;

 Ensure that the food is labelled with a name that is either customary for that food or that describes its nature;

 If reference is made to a food product of animal origin, ensure that the vegan/vegetarian product is sufficiently similar to the product referred to;

 Don’t use legally protected names or legally prescribed names of products of animal origin (e.g. milk, cream, yoghurt, cheese, chicken/goose or duck wings) also considering national regulations;

 Don't use protected designations of origin, protected geographical indications and designations for guaranteed traditional specialties that relate to products of animal origin;

 Don't imitate the visual appearance of food of animal origin or use images of animals unless it is made sufficiently clear that the product does not contain animal ingredients.

Background

So far, there are no European regulations that deal specifically with the labeling of vegan and vegetarian foods. The requirements for the labeling of such products are therefore based on the general requirements of the Food Information Regulation (EU) 1169/2011 ("FIR"). As a general principle, information about food must not be misleading according to the FIR. In particular, consumers must not be misled about the properties of food and the presence of certain foods or ingredients. Insofar, consumers may particularly be misled by the name or the appearance of the food or the visual design of the packaging of the food. 

Of particular importance in this respect is the requirement of the FIR that food must be labeled with its name. Given that there is no legally prescribed name for vegetarian and vegan foods similar to food of animal origin, these food products must be labelled with a customary name or a descriptive name. For vegan or vegetarian foods that are similar to or even intended to replace foods of animal origin, it initially seems obvious to choose a name inspired by the animal-based food. 

Even if the plant-based origin is indicated by clarifying additions, customary or descriptive names may still not be based on legally protected names. Legally protected names exist e.g. for dairy products (milk, cream, yoghurt, cheese, Regulation (EU) 1308/2013). Accordingly, few years ago, the European Court of Justice (“ECJ”) ruling "Tofutown" decided that plant-based products may not be marketed under names such as milk, cheese or butter (ECJ, 14 June 2017, case no. C-422/16).  

In addition, there are legal names for certain other animal products that are not exclusively protected but are legally prescribed, e.g. for beef (veal or young beef), poultry meat (e.g. chicken/goose or duck wings, legs, breast) and fishery products (e.g. Alaska pollock, shrimp, salmon). To avoid misleading consumers, the names of vegan and vegetarian foods should also not be based on these legally prescribed names.

Using a name inspired by animal-based foods entails particular risks of consumers being misled, as consumers' expectations based on the name could be disappointed. Insofar, the FIR requires that if consumers assume that the food in question normally contains a certain ingredient (e.g. meat), but that this ingredient has been replaced, the replacing ingredient must also be clearly indicated.

German Guidelines for vegan and vegetarian foods 

On 10 September 2024, the German Food Codex Commission published its updated version of "Guidelines for vegan and vegetarian foods with similarities to foods of animal origin"  (“Guidelines”) summarizing various criteria that can be used to assess the requirements for the labelling of such foods. Even though the Guidelines are not legally binding, they are regularly used by courts and authorities to assess whether a product presentation is misleading or whether a permissible name has been chosen. They can also be used to determine whether there is a customary name for the food in question in Germany. The Guidelines therefore serve to positively specify the European legal requirements. If these labeling requirements are followed, manufacturers can generally assume that the labeling of their vegan or vegetarian food is not deemed misleading.

a) General requirements for labeling and presentation of vegan and vegetarian food products

The Guidelines set out general requirements for the labeling of vegan and vegetarian products that are similar to foods of animal origin. 

• Vegan food is defined as food that does not contain products of animal origin and in which no ingredients, processing aids, or non-food additives used in the same way and with the same purpose as processing aids, of animal origin, neither in processed nor unprocessed form were added or used. However, it is made clear that microorganisms such as bacteria, yeast and fungi are not of animal origin and may, thus, also be used in vegan food.
• Food that meets the requirements for vegan foods are vegetarian if, in deviation from the requirements for vegan food, milk, colostrum, farm-raised poultry eggs, honey, beeswax, propolis, wool fat/lanolin from wool obtained from living sheep, or their components or products derived from them were added or used.

According to the Guidelines the vegan or vegetarian nature of the food shall be clearly indicated in a clearly visible place, i.e. usually in the main field of vision. This can be done in particular by stating "vegan" or "vegetarian" or by providing equivalent, unambiguous information, e.g. also by using corresponding word and figurative marks. However, it should be noted that the updated Guidelines point out that claims such as "meat-free" or "plant-based" are not sufficient for this indication.

In addition, the ingredient or base ingredient that is the main substitute of the ingredient of animal origin must also be clearly indicated. In the updated Guidelines a list of examples of such ingredients was included. For example, vegetables, cereals, mushrooms, tofu and seitan, edible vegetable fats, nuts, such as almonds, and protein isolates and concentrates are mentioned as possible substitutes. However, there is still a lack of criteria as to how to determine the significant substitute(s). But ultimately, this requirement is intended to ensure that the consumer is clearly informed about the ingredients that are intended to replace or substitute the ingredient of animal origin that is actually characteristic of the food. Therefore, significant substitutes will regularly be ingredients that are used as an alternative to the protein or fat source of animal origin.

Protected designations of origin, protected geographical indications and designations for guaranteed traditional specialties that relate to products of animal origin must not be used in order to avoid misleading information. The use of legally protected or prescribed names such as for milk and dairy products, beef, poultry and fish products should also be avoided. 

In terms of design, i.e. in the presentation of the vegan or vegetarian product, as well as the pictorial representation of animals or animal products, care must be taken to ensure that the product is not misleading. 

b) Criteria for naming vegan/vegetarian food products which are similar to products of animal origin

Further, the Guidelines contain specific requirements regarding the naming of vegan and vegetarian foods which are similar to meat and meat products, fish and fish products, crustaceans and molluscs as well as delicatessen salads.

These criteria follow the general principle that the more similar the products are in sensory terms, the more closely the name of a vegan or vegetarian food may  correspond to the food of animal origin referred to.

With regard to the intensity of sensory similarity, the Guidelines distinguish between sufficient and substantial sensory similarity. With the 2024 update a definition of these terms was included. Sufficient sensory similarity is defined as a clearly perceptible similarity, while substantial sensory similarity requires an almost comprehensive similarity. According to the chairman of the Food Codex Commission, the plant-based alternative product must be almost identical to its animal counterpart in order to achieve a substantial similarity. Another new feature is that the Guidelines now list and define the sensory characteristics that are of particular importance for assessing similarity to the foods of animal origin referred to. The main criteria to be considered are appearance, smell, taste, mouthfeel, texture and consistency.

While the Guidelines themselves do not provide for any details on how the sensory similarity is to be assessed, further guidance is provided by the updated “Guidelines for the sensory testing of vegan and vegetarian foods with similarities to foods of animal origin” (“Testing Guidelines”) of the Food Federation Germany, the leading association of the German food industry, published on 19 November 2024. According to the Testing Guidelines, all criteria previously mentioned should be evaluated and weighted depending on their respective intensity. Criteria that are particularly emphasized in the Guidelines for the respective food of animal origin are essential for the assessment and must be satisfied in any case. For selected products, the Testing Guidelines also provide test schemes in which the product-specific properties are described. For example, the product-specific properties of a "schnitzel” are described as follows:

• appearance: form of a “schnitzel” and golden-brown breadcrumb coating;
• smell: breadcrumb smell;
• taste: ranging from spicy to meaty, including umami or savoury, a hint of fat, a roasting aroma and a breadcrumb taste;
• texture and consistency: crisp (on the outside) and firm when cut or bitten into (on the inside), and a fibrous structure reminiscent of meat.

If there is a clearly perceptible similarity of the vegan or vegetarian product with respect to these product-specific characteristics, the product can be deemed sufficiently similar.

Based on these levels of similarity and criteria, according to the Guidelines the following names shall be permitted:

(i) provided that a sufficient sensory similarity of the vegan or vegetarian food, in particular in appearance and mouthfeel, is given:

• references to names for sliced pieces of meat and pieces of fish and molluscs, e.g. "schnitzel", "goulash", "sticks" or "nugget", e.g. "vegetarian schnitzel made from milk protein" or "vegan product in the style of fish sticks based on soy protein";
• references to names for foods made from minced or similarly minced meat or fish, e.g. "meatball" or "schnitzel", e.g. "vegan product in the style of a meatball based on wheat" or "vegetarian alternative to fish cakes based on ...";
• references to categories of sausage products or fish products, e.g. “spreadable sausage”, “bratwurst”, “smoked fish products”, e.g. "vegan spreadable sausage based on white beans" or "vegetarian lupine sausage";

(ii) provided that a sufficient sensory similarity, particularly in terms of appearance, smell, taste and consistency, is given:

• references to specific sausage products (e.g. mortadella, salami, Wiener), 
• references to specific fish products (e.g. "Schillerlocken", "caviar") and 
• references to specific delicatessen salads that are characterized by ingredients of animal origin (e.g. "meat salad", "poultry salad") 

Corresponding names can be, for example, "wheat-based vegetarian cold cuts Lyon style", "egg-based vegetarian product like Wiener", "vegan seitan strips type Schillerlocke" or "soy-based vegetarian salad in the style of a meat salad".

In contrast to this, however, references to names for special grown meat cuts (e.g. "fillet", "steak", "chop"), animal offal, cooked and raw cured products or to animal species, whole fish, crustaceans and molluscs as well as for special grown cuts of these animals (e.g. "tubes", "claws") shall not be permitted. Only if there is a substantial sensory similarity to the animal foodstuff referred to, in particular in terms of appearance, texture and mouthfeel, should such references be permitted. 

c) The impact of the Guidelines on existing trademarks  

The Guidelines may also impact the use of registered trademarks. 

In this respect, it has to be borne in mind that registering a trademark does not automatically mean that it can be used in all circumstances. To the contrary, if the use of a trademark is misleading or contrary to other regulations, its use can be prohibited irrespective of whether the designation is registered as a trademark.

In addition, a close reading of the Guidelines shows that presumably only figurative marks are to be exempt from the new regulations (“Images protected by trademark law remain unaffected.” in para. 1.4). This is likely to be interpreted that, conversely, trademarks which contain a word element are affected by the Guidelines and must comply with the new regulations of the Guidelines when being used. 

This would mean that owners of existing trademarks could no longer use their trademarks, or at least not in their previous form, if they are not in line with the new requirements of the Guidelines. This leads to the risk that the trademark will be cancelled since, under the German Trademark Act, non-use of a trademark for five years is grounds for cancellation of a trademark. Whether the updated Guidelines are actually meant to mean that only existing figurative trademarks are to be granted protection, has to be clarified by case law in the future.

In addition to these Guidelines, trademarks in the area of vegan and vegetarian products must also meet other specific requirements for registration. For example, it is important to check that a sign is not purely descriptive of the vegan or vegetarian product. The chosen designation must also not be potentially misleading for the consumer. With regard to V-combination names for vegan products, such as “Vromage” and “Vish” instead of “Fromage” and “Fish”, we have analyzed in an earlier article what needs to be taken into account in connection with “vegan trademarks” (please see the article “What’s in a name? V-combination names for vegan products and trademark protection” from 25 June 2021 via the Link here).

Hence, food manufacturers with registered trademarks or in brand planning stage must be prepared for the fact that further adjustments to their trademark strategies may become necessary in the future.

ECJ on national ban on the use of meat terms for plant-based substitute products

Until recently France took a completely different approach to Germany. While Germany positively specified the requirements for avoiding misleading labeling of vegan and vegetarian foods, France simply banned the use of certain terms for such foods. For example, products containing vegetable proteins should no longer be called "schnitzel", "ham" or "steak". With this decree, France had therefore attempted to counter any possible misleading of consumers by simply banning the use of certain names associated with meat products.

However, the ECJ has prohibited this approach (ECJ, ruling of 4 October 2024, case no. C-438/23). The provisions of the FIR conclusively regulate the protection of consumers from being misled with regard to food. Accordingly, Member States may not generally prohibit the use of terms commonly used for meat products for plant-based products. However, in its ruling the ECJ provides Member States with an option as to how they can achieve corresponding restrictions. According to the ECJ Member States are free to introduce legally prescribed names for certain foodstuff. These legally prescribed names may, thus, not be used for other food. However, according to the ECJ, this requires that Member States must positively define the characteristics that a certain food must meet in order to be named with the legally prescribed name. For example, if Member States define precisely which foodstuffs are to be described as "schnitzel", they can prevent foodstuffs that do not meet these requirements from being described as "schnitzel"; in contrast Member States cannot not define which food must not be named as “schnitzel”.

Authored by Dr. Christiane Alpers; Dr. Hanns-Thilo von Spankeren; Mareike Hunfeld, and Greta Bockholdt.