Belgium: Market leader in vegetal alternatives to dairy products, Alpro, deemed to mislead the consumer

03 July 2015

Nicolas Carbonnelle

Alpro is a Belgian company founded in 1980 and is a European pioneer in the development of food products based on soy and other vegetal ingredients such as almond, hazelnut, coconut, rice and oat.

Back in 2012, the Belgian Confederation of the Dairy Industry and three big players in the Belgian dairy sector, namely Danone, Frieslandcampina and Milcobel had noticed that Alpro had been using the words "dairy" and "yoghurt" in commercial communications, more particularly in advertising. They had therefore lodged a claim before the President of the Commercial Court of Brussels, and requested that a cease-and-desist order be issued against Alpro, on grounds of several violations of general food law, consumer protection law and food information requirements.

The claimants alleged a breach of the legal requirements applicable to the use of the words 'yoghurt' and 'milk product', because Alpro advertised its products by making statements implying that their products were "dairy product variations" (in Dutch: "variaties op zuivel" and in French: "variations aux produits laitiers"). In addition, recipes using Alpro products were proposed to consumers on a dedicated website, including "Summer yoghurt-basil dressing" and "yoghurt cake". An advertising campaign also pictured an Alpro product along with the question: "Do you like yoghurt?" Evidence of several other examples of similar uses of the words 'yoghurt' and 'milk product' were submitted to the Commercial Court.

However the Commercial Court dismissed the application and so the same claimants appealed to the Court of Appeal of Brussels. The Court rendered its decision on 10 March 2015.

The use of the words 'yoghurt' and 'milk product' in a product name and in advertising is subject to specific conditions

European harmonized legislation regulates the use of the words 'yoghurt' and 'milk product' in a food product name and in commercial communications. Since 13 December 2014, the relevant rules in that regard are those laid down in Regulation (EU) No 1308/20131 and Regulation (EU) No 1169/20112, as complemented by national law.

While the FIC Regulation provides for a list of mandatory particulars that need to appear on the packaging of all food products, Regulation (EU) No 1308/2013 lays down the rules that apply to the use of certain words in the description of certain categories of food.

The list of mandatory particulars includes the name of the food, which must be either its legal name (where such exists) or, in the absence of a legal name, the customary name of the food, or, if there is no customary name or the customary name is not used, a descriptive name of the food3.

Annex VII to Regulation (EU) No 1308/2013 specifies the applicable marketing standards, the definitions, designations and sales descriptions for milk and milk products intended for human consumption, as per Article 78 (c) of the Regulation. It states in particular that certain names, used at all stages of marketing, are reserved exclusively for milk products - it being understood that a 'milk product' should be derived exclusively from milk, with the further understanding that substances necessary for its manufacture may be added provided that those substances are not used for the purpose of replacing, in whole or in part, any milk constituent4 and 'milk' means exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom.

Yoghurt is listed under section 2 of Annex VII, which means that any food product that bears the name 'yoghurt' must be a milk product. Part III, paragraph 5, second sub paragraph of Annex VII to Regulation (EU) No 1308/2013 provides for an exception that applies when designating products the exact nature of which is clear from traditional usage and when the designations are clearly used to describe a characteristic quality of the product.

Further to the European legislation, a Belgian Royal Decree5 defines the requirements applicable to yoghurt.

In particular, it states that yoghurt is "fermented milk", obtained from the simultaneous action of lactobacillus bulgaricus and streptococcus thermophilus, these two specific cultures having to be kept live and active in the products sold to the consumers.

Summary of the claims, Alpro's defence and the court's findings

The claimants claimed breach of the legislation applicable to the designation of dairy products and that Alpro had provided misleading information to consumers.

Breach of the legislation applicable to the designation of dairy products

The main argument which Alpro used to counter the first claim consisted of asserting that use of the words 'yoghurt' and 'milk product' under Regulation (EU) No 1308/2013 was restricted only when having regard to product names as defined in the FIC Regulation. In other words, using those words for marketing purposes would not be in breach of the FIC Regulation.

However, the Court considered that the plaintiffs' claim was well-founded, because the prohibition of using the words 'yoghurt' and 'milk product' for any product that is not a 'milk product' as defined in Annex VII to Regulation (EU) No 1308/2013 is not limited to the name of the food. Indeed, point 6 of Part III of Annex VII states that in respect of a product other than those described in points 1, 2 and 3 (which include yoghurt), no label, commercial document, publicity material or any form of advertising as defined in Article 2 of Council Directive 2006/114/EC, or any form of presentation may be used which claims, implies or suggests that the product is a dairy product.

Thus the scope of the prohibition goes well beyond the name of the food. The Court therefore dismissed Alpro's argument.

Alpro could also not find a justification for its use of the words 'yoghurt' and 'milk product' under Part III, paragraph 5, second sub paragraph of Annex VII to Regulation (EU) No 1308/2013. As stated above, that exception applies to the designation of products the exact nature of which is clear from traditional usage and/or when the designations are clearly used to describe a characteristic quality of the product. The Court considered that the aim of the exception is to allow the use of the word 'yoghurt' or 'milk product' for products that are not dairy products. In this case, what Alpro was trying to claim in its argument is that it could have recourse to the exception to be entitled to state that its product are not 'yoghurt' or 'dairy product'; the Court did not agree.

However, the Court considered that the list of ingredients of the products could include the words 'yoghurt ferments' or 'yoghurt cultures' where lactobacillus bulgaricus and streptococcus thermophilus were effectively added to the product sold to the consumers - as was the case for certain types of products.

Misleading character of Alpro's communications

The second claim asserted by the claimants related to the misleading character of Alpro's communications towards consumers.

Based on the factual evidence at hand, and taking into account the reasonable expectations of the average consumer, the Court considered that the use of the words 'yoghurt variation', 'milk product variation' and 'vegetal yoghurt variation' constituted misleading advertising. The same conclusion was drawn as regards the advertising campaign in which a poster bore the question 'Do you like yoghurt?' and all other similar uses of the words 'yoghurt' and 'milk product' as evidenced by the claimants.

Interestingly, among the factual evidence put forward by the claimants, the Court rejected the fact that the type of packaging used by Alpro was very similar (not to say identical) to that used by the milk sector for the packaging of milk products. The Court considered that the type of packaging used was very common and that this element was not relevant for assessing the misleading character of Alpro's communications.

Decision of the Court of Appeal

The Court of Appeal held that Alpro’s conduct amounted to breach of food labelling legislation and unfair commercial practice in a decision dated 10 March 2015.

The Court of Appeal ordered Alpro to cease such practices within 14 days as regards the online communications concerning its products, 4 months as regards the packaging of these products and 90 days as regards advertising and imposed a fine of € 1,000 per day in the event of a delay in execution, and €1,000 per non-compliant packaging or advertising occurrence.

Alpro has complied with the decision in the indicated timeframe, and now advertises its products as "alternatives to yoghurt and dairy".

The case is interesting to read in the perspective of the CJEU's decision on a request for a preliminary ruling in case C-195/14, Teekanne (see separate article in this issue of the Food Law Digest). In both cases, the Court has indeed taken into consideration all elements of the presentation of the product, not just labelling elements such as the name of the product (the issue in this case) or the list of ingredients (the issue in the Teekanne case).

Another interesting case to consider alongside is T-51/14, in which a traditional Czech product for which a TSG designation as 'spreadable butter' was sought did not meet the conditions for use of the sales description ‘butter', leading the General Court to hold that a Traditional Speciality Guaranteed designation cannot be obtained where registration would conflict with other EU product labelling rules (also commented on in this issue of the Food Law Digest.)

[1] Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, O.J., L-347 of 20 December  2013, p.671) – "Regulation (EU) No 1308/2013".

[2] Regulation (EU) No 1169/2011 of 25 October 2011 of the European Parliament and of the Council on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (O.J., L-304, 22 November 2011, p.18) – "FIC Regulation".

[3] Article 17 of the FIC Regulation.

[4] Regulation (EU) No 1308/2013, Annex VII, section III,

[5] Royal Decree of 18 March 1980 on yoghurt and other fermented milks.

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