SHE Matters: Legislative Obstacles for plant-derived meat substances

With effect from 1 October 2022, a recently-published French decree has banished the use in France, in connection with the sale of food products, the use of terminology traditionally associated with meat or fish to designate products that do not derive from members of the animal kingdom.

The effect of this legislation, the result of lobbying by meat and fish producing interests, is however less drastic than might at first appear. The legislation does not apply to products from other EU member states, or from Turkey. No doubt this exception has been made in order to avoid potential difficulties with EU Single Market Rules.

It has accordingly been suggested that the lobbying interests who obtained the French legislation may now press for similar legislation to be adopted at EU level.

In fact, several efforts have been made in the past to persuade the EU as a whole to adopt similar legislation, however, these efforts have so far failed. No doubt this is in part because one of the thrusts of the EU’s “Farm to Fork” strategy is to encourage the use of alternative plant-based proteins in place of meat, particularly red and processed meats.

The one area where the approach of the French legislation, in banning the use of specific types of expression with traditional associations in the context of food products has been successful at EU level, has been in the field of dairy products.

Partly as a result of EU legislation, in particular the Agricultural Products Regulation, and partly as a result of a decision of the European Court of Justice in 2017, it is unlawful for purely plant-based product to be marketed with designations such as “milk”, “cream”, “butter”, “cheese” or “yogurt”.

There is however a more general principle laid down in Article 7 of the Food Information to Consumers Regulation. This regulation, like most EU food legislation, continues to have effect in the UK despite Brexit. Article 7 of the Regulation requires that food information shall not be misleading, particularly “by suggesting by means of the appearance, the description or pictorial representations, the presence of a particular food or ingredient, while in reality a component naturally present, or an ingredient normally used in that food has been substituted with a different component or a different ingredient” (Article 7(1)(d)).

It would therefore be prudent for the producers of foods which substitute plant-derived substitutes for meat to avoid the use of terms or expressions which might be considered misleading.

A further potential hurdle which producers of such products face lies with the Novel Food Regulation. This requires that “novel Foods” obtain authorisation before being sold as a food stuff within the EU. A food stuff can be considered “novel” if it was not consumed by humans within the Union to any significant degree prior to May 1997. That will apply to some plant products, but not to others, and decisions will need to be made very much on a case-by-case basis.

The reference to consumption by humans in the Union or (any other particular country or jurisdiction) may also raise problems given differences in custom. Such differences might be similar to those which gave rise to the famous quip by Doctor Johnson that oats is “a grain which in England is generally given to horses, but in Scotland supports the people”.

However, producers of plant-based food stuffs can take some comfort from the fact that both economics and also health concerns are on their side. This will no doubt over time lead to the emergence of acceptable expressions for plant-based substitutes for meat products which will not be considered misleading, and which will facilitate the marketing of those products, which it is increasingly the policy in the EU and elsewhere to encourage.