France: New Decree prohibiting the use of meat-related terms for the designation of plant-based products

Recent developments in alternative proteins regulation in France led the Ministry of economy and the Ministry of agriculture to adopt Decree no. 2024-144 strictly regulating the use of certain meat-related terms used to designate foodstuffs containing plant proteins.

It is interesting to point out that if restrictions for dairy products have been defined at European level (it is indeed prohibited to use dairy names for plant-based food products (such as milk, cream, butter, cheese, yoghurt etc.) to ensure that consumers are properly informed), such restrictions do not exist for meat-related terms. On 23 October 2020, the European Parliament voted on the Common Agricultural Policy rejecting all proposals to reserve meat-related names for products containing meat. 

Legal developments in France

The law n°2020-699 on the transparency of agricultural and food product information of 10 June 2020 introduced the prohibition of the use of designations customarily used to designate foodstuffs of animal origin for plant foodstuffs. This law created article L. 412-10 of the French consumer code which provides that “Names used to designate foodstuffs of animal origin may not be used to describe, market or promote foodstuffs containing plant proteins.” 

A first Decree was published on 29 June 2022 to implement this article. However, it was challenged by the plant-based products industry before the Conseil d' Etat (the highest French administrative authority) which suspended (Decision no. 465844 of the Conseil d’Etat of 27 July 2022) the Decree and requested a preliminary ruling (Case C-438/23, Protéines France and Others) from the Court of Justice of the European Union (CJEU) on the 13 July 2023 regarding European labelling regulations.

The questions referred to the CJEU by the Conseil d’Etat consisted in inquiring:

• whether the provisions of Article 7 of Regulation (EU) No 1169/2011, (which require consumers to be provided with information that does not mislead them as to the identity, nature and properties of foods) should be interpreted as meaning that they specifically harmonise the matter of the use of names of products of animal origin from the butchery, charcuterie and fish sectors to describe, market or promote foods containing vegetable proteins which may mislead the consumer, and therefore prevent a Member State from acting in that matter by adopting national measures regulating or prohibiting the use of such names, and
  
  
• whether the provisions of Article 17 of Regulation (EU) No 1169/2011, (which provide that the name by which the food is identified is, in the absence of a legal name, to be its customary name or a descriptive name) should be interpreted as meaning that they specifically harmonise the matter of the content and use of names, other than legal names, designating foods of animal origin to describe, market or promote foods containing vegetable proteins, including in the case of whole substitution of ingredients of vegetable origin for all the ingredients of animal origin constituting a food, thereby preventing a Member State from acting in that matter by adopting national measures regulating or prohibiting the use of such names.

The French government did not wait for the CJUE preliminary ruling and proceeded to revise the decree taking into account the observations of the Conseil d' Etat. 

In its decision of 27 July 2023, the Conseil d’Etat decided to suspend the Decree of 29 June 2022 after considering this first text to be too vague since the Decree targeted, without further clarification, "terminology specific to butchers, delicatessens or fishmongers". It was thus challenged for infringing legal certainty, the constitutional objective of intelligibility, clarity and accessibility of the law and the principle of legality of offences. 

The new Decree therefore aims to be exhaustive in so far as it includes a detailed list of the twenty-one terms "the use of which is prohibited for the designation of foodstuffs containing plant proteins". 

The new draft decree was notified to the European Commission on 23 August 2023 and the new Decree was recently adopted on 26 February 2024.

Contrasting point of views expressed regarding the revised Decree 

Contrasting points of view were expressed at the occasion of the notification procedure of the revised Decree to the European Commission. This resulted in several stakeholder contributions underlining issues relating to the draft Decree. To list a few examples, contributions such as of the European Alliance for Plant-based Foods (EAPF), The European Vegetarian Union (EVU), The Jeremy Coller Foundation, 77 Foods, the European Plant-Based Foods Association (ENSA) pointed out among other observations:

• The two texts hardly differ at all, at least in their substantive aspect, since in both cases the use by the promoters of plant protein-based foodstuffs of meat-related terms is prohibited.
  
  
• This new version of the text still infringes on the principle of free movement of goods and creates an uneven playing field for manufacturers of imported products which will have a marketing advantage.
  
  
• The Decree contributes to the increasing fragmentation of food labelling rules in the EU and is incompatible with the harmonisation objectives established on EU level. 
  
  
• The Decree prevents consumers from making informed choices about plant-based foods and contradicts the ambitions of the EU for more sustainable food systems in light of a context of strong consumer demand for products containing plant proteins. 
  
  
• Denominations such as grilled’, ‘steak’, ‘filet’, ‘escalope’ provide useful and valuable information to consumers about a product’s shape, texture and preparation and have been used on plant-based foods for years. Consumers receive clear information and are enabled to make more sustainable food choices in line with the EU’s sustainability ambitions.  
  
  
• The Decree is not in the interest of French consumers. French parliament does not provide supporting evidence of the alleged risk, demonstrating that consumers could be misled by terms such as “plant-based fillet’. 
  
  
• The plant-based industry considers that the primary motivation of the Decree is not the protection of consumers, but the protection of livestock farmers. 

Moreover, several requests for supplementary information that were forwarded by Member States demonstrate the lack of clarity of the Decree and confusion expressed, in particular by Spain which requests the French authorities explain the wording used in the mutual recognition clause allowing the marketing in France of products imported from Member States and third countries.

Denmark also expressed its concern as the subject of the Decree is specifically harmonised by Regulation 1169/2011 on the provision of food information to consumers, and that Article 38 prevents the introduction of national rules in that regard. In addition, Denmark considers that current Regulation 1169/2011  is sufficient to ensure that consumers are not misled by such names used for vegetarian/vegan products. 

Such comments and requests did not prevent the adoption of the revised Decree, which was published on 27 February 2024, the standstill period having ended on 24 Novembre 2023.

Provisions of the new Decree 

The new Decree confirms the authorities’ position regarding the prohibition to use meat-related terms to describe plant-based products and  their will to strengthen the protection of consumers against the use of inappropriate terms to designate foodstuff. 

Indeed, it sets out the list of terms whose use is prohibited for the designation of foodstuffs containing plant proteins (such as steak, ham, fillet, escalope), and the list of terms authorised for the designation of foodstuffs of animal origin which may contain plant, as well as the maximum proportion of plant proteins that may be contained in the foodstuffs for which these terms are used.

However, it should be noted that the decree specifies that products legally manufactured or marketed in another Member State of the European Union or in a third country are not subject to the requirements of this decree, and thus remain authorised in France. 

Finally, the Decree provides for penalties in case of infringement of its provisions. Indeed, non-compliance will be sanctioned by a fine of up to 1,500 euros for an individual and 7,500 euros for a legal entity. 

The operators have a three-month period of entry into force after the publication of the Decree to adapt their labelling, and one year transition period is provided to enable the clearance of the existing stocks as from the publication of the Decree.