Case C-422/16, – selling ‘tofubutter’ and ‘veggiecheese’ without butter or cheese

Does a product that is sold as ‘Tofubutter’ but which lacks butter contravene the EU’s ‘agricultural products’ Regulation 1308/2013?

Tofu is made from soy beans into a foodstuff that is eaten by humans.

In Germany, there is a company called Via its internet website, it has been selling its ‘Tofubutter’ and ‘VeggieCheese’ tofu-products mainly to vegetarians and vegans.

However, using those words has landed the company in hot water with the local regulatory authority, the Verband Sozialer Wettbewerb. This body objects to the company using the words ‘butter’ and ‘cheese’ when there is no butter or cheese in the product and tofu is not a dairy product.

Believing the company to be engaging in unfair competition, the body went off to the local court and obtained an injunction against the company. This local court had only recently issued an injunction to stop the same company from using the words ‘cheese’ and ‘milk’ on some of its other tofu products. However, it seems that this time the local court has apparently decided to make a preliminary reference to the CJEU in respect of both injunctions.

Questions Referred
According to today’s Official Journal (OJ [2016] C350), the Landgericht Trier has asked:

1. Can Article 78(2) of 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 (‘Regulation (EU) No 1308/2013’) be interpreted as meaning that the definitions, designations and sales descriptions defined in Annex VII need not satisfy the relevant requirements of this Annex if the relevant definitions, designations and sales descriptions are expanded upon by clarifying or descriptive additions (such as ‘tofubutter’ for a pure plant-based product)?

2. Is Annex VII, Part III, point 1, to Regulation (EU) No 1308/2013 to be interpreted as meaning that the expression ‘milk’ is exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom, or may the expression ‘milk’ — where necessary with the addition of explanatory terms such as ‘soya-milk’ — also be used in the marketing of plant-based (vegan) products?

3. Is Annex VII, Part III, point 2, to Regulation (EU) No 1308/2013, in conjunction with Article 78, to be interpreted as meaning that the descriptions listed in detail in point 2(a), such as, in particular, ‘whey’, ‘cream’, ‘butter’, ‘buttermilk’, ‘cheese’, ‘yoghurt’ or the term ‘cream’ etc., are reserved exclusively for milk products, or can pure plant-based/vegan products, which are produced without (animal) milk, also fall within the scope of Annex VII, Part III, point 2, to Regulation (EU) No 1308/2013?

There is no mention in the judgments of the referring court as to whether the tofu veggie-cheese products are also organic. In that context, readers are alerted to a preliminary reference from the German Supreme Court about a German internet company that has been selling organic spice mixes and which is seeking to benefit from the ‘direct sales’ exception in the EU’s ‘organic produce’ legislation.

Readers of EU Law Radar interested in food labelling might also look at the recent geographical indication preliminary reference which is also from the German Supreme Court.

However, if ‘Tofu butter’ without the butter is analogous to ‘Raspberry vanilla tea’ made without raspberry or vanilla.