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NETHERLANDS - PLANT BASED ALTERNATIVES CAN COMPARE TO DAIRY PRODUCTS

A ruling by the Netherlands highest court clarifies that the existence of reserved names for dairy products does not exclude the use of such names in the marketing of plant based alternatives.

The Dutch Dairy Association NZO had initiated proceedings against Alpro, a major producer of plant based alternatives to dairy products. For the largest part, Alpro products including drinks and desserts are made from soybeans. In the application of EU Regulation 1308/2013 of 17 December 2013 establishing a common organisation of the markets in agricultural products, the denominations of dairy products is largely restricted to products derived from animal milk. By consequence, dairy alternatives cannot use names such as yoghurt, cream, whey or cheese.

NZO argued the denominations of a number Alpro’s products would contain reserved names or at least would be leading to the belief they are dairy products. For instance, the indication “mild and creamy” for a fatty soy emulsion would, in the opinion of NZO, imply the emulsion is made from milk. Further, Alpro made them mention for yoghurt-alternatives that they are an alternative to yoghurt and contain yoghurt ferments.

The case made it to the Court of Cassation, the highest court of the Netherlands, which interpreted the application of EU Regulation 1308/2013 to the given case. The latter Court clarified that although it is not allowed to designate plant based products with any of the names reserved for milk products, such does not preclude the reference to milk products in the labelling or communication of plant-based products. Such references are permitted as long as they do not suggest the plant based product to be dairy products [derived from milk]. Meaning that the indication “alternative to yoghurt” could be acceptable in the communication of Alpro products.

HOGE RAAD DER NEDERLANDEN (31 August 2019) - ECLI:NL:HR:2019:1293 - link