The Complex World of Legal Bans on Meat-Sounding Names and Innovative Technologies

By Francesco Planchenstainer 

  1. Navigating Bans on Meat-Sounding Names and Alternative Protein Products

In the rapidly evolving world of alternative protein, innovation is surging ahead at an awe-inspiring pace. No day passes without an innovation being announced. Technologies in this space range from traditional production methods, such as fermentation (e.g., Asian tempeh), to more futuristic production systems, like cell cultures or 3D-printed meat.

These technologies have triggered a global heated debate, pitting the defenders of traditional production systems against the champions of a new course for the food industry.

Against this backdrop, countries (and states within the United States) are divided along the same lines: those which are home to a strong cattle industry have usually adopted protectionist measures, whereas those that host start-ups, and are home to a sophisticated consumers community, often favor alternative protein technologies.

Diamantas and Laudon focused on the U.S. legal landscape within this topic in a previous article in Update.[1] This article further expands the analysis in a comparative fashion, focusing on similar bans enacted by France and Italy, and summarizing the legal debate around these provisions. Policymakers worldwide grapple with the challenge of balancing consumer protection with the need to foster innovation. This article highlights how, while legal theories developed in the United States found similar counterparts in Europe, in both the United States and the European Union consensus on how to regulate such technologies is far from being reached. Such a consensus would, however, be desirable for food manufacturers who are confronted with a plethora of non-harmonized regulations, especially when engaged in international trade. Whereas innovative technologies may warrant a more in-depth safety review, consumers appear to be more and more acquainted with food innovation. Lawmakers should adopt measures proportionate to the interests they intend to protect (e.g., protection of consumers from deception, preservation of food traditions) being safeguarded.

  1. The French Ban on “Meat-Sounding” Names

France was the first EU country to adopt legislation openly meant to protect traditional meat productions. In the EU, this type of protection was already afforded to dairy products by virtue of a ruling by the Court of Justice of the European Union (CJEU). The CJEU maintained that the Common Agricultural Policy (i.e., Regulation 1308/2013 on the Common Organization of Markets), the legal framework that regulates agricultural law at the EU level, reserved the use of dairy terminology exclusively for products derived from animal milk.[2]

France deemed that a full harmonization of labeling rules for meat products did not exist at the EU level, considering that the European Parliament had declined to adopt legal names for these products.[3] Therefore, the French government went on to pass a sweeping ban to prevent any product not containing a certain amount of animal ingredients from being labeled as such.

This goal was achieved by means of a general statutory provision (i.e., Article L412-9 Code de la consummation) and an implementing Decree (i.e., Décret n° 2022-947).

Article 2 of the Decree forbade labeling of food products that contain plant protein using:

  • legal names[4] of foods for which the addition of plant protein is not allowed;

  • expressions referring to animals’ or species’ names (or their anatomy);

  • names referring to the specific terminology of butchery, charcuterie or fishmongery;

  • names of foods of animal origin as part of commercial use.

An Annex to the Decree also provided prescriptive rules in regard to the maximum content of non-animal ingredients in certain animal products.

Alternative protein producers represented by their industry association (i.e., Protéines France)[5] reacted to this measure by seeking injunctive relief from the Conseil d’Etat, the French highest administrative law court.[6] Along with procedural complaints,[7] the plaintiffs put forward several substantial arguments as to why the court should find the French measure inconsistent with EU law and therefore invalid.[8]

First, the plaintiffs argued that the measure lacked clarity and intelligibility in adopting a blanket ban to all animal-sounding names without providing clear direction as to which specific terminology is banned.[9]

Second, the Decree substantially impacted the free movement of goods within the EU market by introducing technical measures equivalent to trade barriers.[10]

Third, the plaintiffs claimed that Directive 2005/29/CE already put in place rules to prevent unfair business practices, covering also food labeling.[11]

Fourth, the plaintiffs alleged that food labeling rules are fully harmonized at the EU level under Regulation (EU) 1169/2011 and that these rules already forbid the use of misleading food names (cf. Article 7). Articles 9 and 17 of Regulation (EU) No 1169/2011 specifically harmonize rules in regard to product naming, namely legal names (like U.S. standard of identity), customary names (i.e., names known to the public), and descriptive names (i.e., describing the nature of the product).[12] These rules also apply to alternative protein products.[13] Consequently, according to the plaintiffs, EU Member States cannot adopt additional labeling measures.[14]

The Conseil d’Etat rejected the procedural claims and found none of the first three substantial arguments persuasive, although it welcomed the plaintiffs’ concerns that labeling rules were harmonized at the EU level.”[15] Thus, while keeping in place the suspension of the Decree, the court referred certain interpretative questions of EU law to the CJEU with a “preliminary procedure” (similar to a writ of certiorari). Among other request for interpretation, the French court asked the EU counterpart to clarify whether Article 7 (prohibiting food labeling from containing misleading information about the identity of the product being sold) and Article 17 of Regulation (EU) No 1169/2011 (allowing use of customary and descriptive food names in the absence of legal ones) prevented Member States from adopting additional labeling rules.[16]

Meanwhile, in a move that some observers described as tactical to render the litigation moot, the French government repealed the original Decree with a new one (i.e., Décret n° 2024-144), in which the French government addressed some of the legal arguments brought forward by the plaintiffs.[17] With the aim of dispersing with the plaintiffs’ argument relative to lack of clarity, the new Decree includes an appendix with a list of names reserved for products of animal origin, the scope of which is less broad than a blanket ban on all legal, customary, and descriptive names alluding to animal foods. As a result, Annex I to the Decree does not prohibit the use of terms like “nuggets” and “burger,” whereas “steak,” “grilled,” or “fillet” are still restricted. Additionally, in contrast to the allegation that the Decree burdened the free movement of goods within the EU, the French government also created an exception for products imported in France, so long as the products are legally manufactured and labeled in other Member States or in a third country.

From the official docket of the CJEU, it appears that the EU court will entertain the case, thus not considering it as moot.[18]

Recently the Advocate General,[19] siding with the French government and meat producers, took the opposite view arguing that, whenever harmonized legal names do not exist at the EU level, Member States are free to set their own rules, provided that the free movement of goods is not impacted.[20]

However, because the Advocate General’s opinions, while persuasive, are not binding for the Court, it will be for the CJEU to decide whether or not the Decree comports with EU law.

  1. The Italian Ban on Cell Culture Meat and Meat-Sounding Names

In 2023, Italy also introduced a ban to alternative protein products, although Law no. 172/2023 was much broader in scope. The Italian bill went beyond its French analogue, because, though it initially targeted cell-cultured meat, the Parliament subsequently amended the bill to also include restrictions to meat-sounding names.

The Italian government supported the bill by relying on the precautionary principle, one of the cornerstones of European food law and enshrined in Article 7 of Regulation (EC) no 178/2002 (i.e., General Food Law). Many scholars noted how the reliance on the precautionary principle, as interpreted by the EUCJ, was fully unsupported here.[21] The precautionary principle predicates that EU institutions and Member States, following a thorough risk assessment, when there are valid concerns about potential dangers to the environment or health, but not enough data to fully assess the risk, risk management measures may be adopted.[22] Measures justified on the basis of the precautionary principle must consider the extent of scientific uncertainty and be proportionate for the chosen level of protection.

The EU already has a robust legal framework in place to evaluate the safety of novel foods[23] that includes a case-by-case risk assessment by the European Food Safety Authority (EFSA) (similar to GRAS notification reviews by FDA) and a risk management decision by the European Commission, assisted by Member States. At the time the Italian Parliament passed Law no. 172/2023, there was no pending application for the approval of any cell-cultured meat as a novel food.

The Italian government supported the measure claiming that the World Health Organization and the Food and Agriculture Organization identified some risks connected with the technology. However, this was likely due to a translation error, because the two organizations discussed “hazards” rather than “risks,” recommending that countries assess them during the approval process.[24] For this reason, the Italian ban appears like an anticipatory measure, failing to consider precise and identifiable risks or a specific application of the technology. If the EU approved a cell-cultured application as a novel food, the Italian ban could be displaced by virtue of the EU internal market rules: EU Member States cannot infringe on the free movements of goods that are compliant with EU harmonized food law.

Law no. 172/2023 basically replicated the same language as the ban found in the first French Decree, curtailing the ability for plant products to carry names associated with animals, their anatomic parts, butchery, fishmongery, and meat processing.

Unlike the French ban, which is facing substantial legal scrutiny, the Italian law is likely to become ineffective due to a procedural, yet more decisive, reason. Under EU law, Member States are required to notify the European Commission and any other Member States of a technical measure that may impact the internal market (similar to the technical notification measure system under the World Trade Organization). This procedure is called the Technical and Regulatory Information System (TRIS) under the Single Market Transparency Directive (EU) 2015/1535. Following the notification, Member States must refrain from adopting the measure for at least three months to give their peers the opportunity to provide comments (a.k.a., the “stand-still period”). According to the settled case law of the EUCJ, failing to comply with the TRIS notification system renders the measure vitiated and national courts can displace it, if so requested by parties who are negatively impacted by the rules.[25]

Even though the Italian government had initially notified the draft bill before introducing it to the parliament under the TRIS, it subsequently withdrew the notification, and the parliament approved the law without waiting until after the stand-still period. The European Commission publicly acknowledged this breach of the notification procedure as reported by Italian media.[26] Therefore, although no plaintiff has challenged the validity of the law so far, a court could disapply it altogether as non-compliant with EU law.

  1. The Parallel Between U.S. and EU Disputes

In comparing the legal arguments developed by the plaintiffs on both sides of the Atlantic, some striking differences come to mind.

a. First Amendment and Freedom of Information

While the freedom of advertising is a right protected both in the U.S. and in the EU, EU businesses’ rights are less extensive.

The United States affords stronger protections to commercial speech under the First Amendment. In Central Hudson Gas & Electric Corp. v. Public Service Commission, the Supreme Court ruled that, whereas the government can limit false, deceptive, or misleading advertisements, it can only curb otherwise lawful commercial speech when it directly advances a substantial governmental interest.[27] More importantly, the Supreme Court noted that restrictions on commercial speech must not be more extensive than necessary.

In the EU, protection of freedom of speech does not have the same latitude as that in the U.S., and the concept of “commercial speech” is delineated as one of the corollaries of the “freedom of expression and information” of Article 11 of the Charter of Fundamental Rights of the European Union. However, in the EU the lawmaker is accorded a broader discretion in areas that entail complex decisions involving political, economic, social, and public health choices.[28] Hence, not only the protection of consumers from deception, but also social and economic concerns can provide legitimate grounds to limit businesses’ freedom of expression. Furthermore, as established by the rulings of the EUCJ related to tobacco advertising, the protection of public health typically takes precedence over other fundamental rights.[29]

b. Misbranded and Misleading Labeling

Both U.S. and EU plaintiffs attacking free speech bans have argued that U.S. and EU law already protect consumers from misleading practices. In the U.S., pursuant to section 502 of the Federal Food, Drug, and Cosmetic Act (FDCA), any false or misleading labeling renders a food misbranded. In the EU, Regulation (EU) 1169/2011 provides that voluntary information conveyed to the consumer must not be misleading and must not be ambiguous or confusing. On both sides of the Atlantic, alternative protein producers have attempted to prove that consumers are not misled as to the nature of these products. Despite consumers’ NGOs conceding that U.S. consumers are familiar with plant-based products,[30] U.S. courts appear split as to whether consumers are indeed deceived by these products. The U.S. District Court for the Eastern District of Arkansas, finding the Arkansas Truth in Advertising Law unconstitutional, observed that the state had not produced “any evidence of broad marketplace confusion.”[31] On the contrary, the U.S. District Court for the Western District of Oklahoma found that the Oklahoma Meat Consumer Protection Act rightly limited labeling practices “potentially misleading to a reasonable consumer.”[32]

c. U.S. Preemption and EU Supremacy and Harmonization

No matter whether the consumer is misled or not, courts in both the U.S. and the EU are dealing with another common challenge: whether the FDCA preempts state law, and whether EU regulations are fully harmonized, thus preventing Member States from legislating in the space. This topic is still subject to discussion in the U.S., although based on the recent draft guidance of FDA of plant-based drinks,[33] the new framework for the approval of cultivated meat, and the lack of federal enforcement against the labeling of alternative protein products, it appears that federal agencies have embraced a robust regulatory approach capable of overseeing all facets of these emerging technologies.[34] On the contrary, the CJEU will address this issue in the preliminary referral relating to the French Decree.

d. Dormant Commerce Clause and the Free Movement of Goods

Plaintiffs have also attacked bans for their propensity to upset the flow of interstate commerce in the U.S. and the internal market rules in the EU. Some U.S. plaintiffs have argued that bans do not comply with the Dormant Commerce Clause by imposing additional labeling regulations favoring the local cattle industry at the expense of out-of-state alternative protein producers.[35]

The free movement of goods is one of the raisons d’être of the EU as enshrined in Article 34 of the Treaty on the Functioning of the European Union,[36] and is a right that the CJEU has affirmatively protected. In another instance, considering certain labeling rules on food supplements adopted by a Member State and aimed to protect consumers, the EUCJ ruled that even health measures must be “consonant with protection of public health without imposing serious restrictions on the free movement of goods.”[37]

e. Vagueness and the Proportionality Test

Both EU and U.S. courts have dealt with the allegations that many of the banning statutes were too vague. The French Conseil d’Etat observed that the first version of the decree being too vague did not afford legal certainty.[38] U.S. courts have carried a similar test, while considering the compliance with the Due Process clause, although with different outcomes depending on the language of the statute under scrutiny.[39]

Additionally, in the EU, in examining public policies, courts pay great deference to the principle of proportionality as found in Article 49 of the Charter of Fundamental Rights and Article 36 of the Treaty on the Functioning of the European Union. According to this principle, when there is a choice between two measures, the least impactful should be preferred.

  1. Legal Challenges Beyond the U.S. and the EU

The disharmony observed in the U.S. and EU is also reflected globally, as the Codex Alimentarius has struggled to reach a consensus on how to regulate these technologies, and to agree even on whether specific measures are needed at all.[40]

In the absence of a global standard, public and private actors have implemented a vast array of measures that replicate what is seen at the U.S.- and the EU-level.

Following Italy and France, other policy makers have implemented measures to protect traditional productions. For example, South Africa adopted a sweeping ban against alternative protein products, which required the immediate withdrawal of these products from the shelves and granted the South Africa Food Safety Authority the right to seize them. The Consumer Goods Council of South Africa immediately attacked this measure, asking the High Court of South Africa (South Gauteng) for an interim injunction suspending its immediate effects. The court found that the plaintiff showed a prima facie case given the absence of specific regulations on alternative meat products and the absence of any naming prescription or reservation names for processed meat.[41]

Australia went in the opposite direction. Despite an investigation by the Australian Senate advocating for the implementation of stricter regulations on meat alternatives, no additional measures were enacted following a change in the political majority.[42] Responding to the Australian Senate’s inquiry, Food Standards Australia New Zealand found that rules in place were sufficient to protect consumers from deception.[43] Similarly, presenting an opposite point of view from the senatorial committee, the Australian Consumer and Competition Commission held that the agency had not received any complaint alleging misleading labeling in plant-based meat substitutes.[44]

In other instances, like in Switzerland, where policymakers do not keep pace with innovation, it becomes necessary for the courts to intervene in the debate. The Federal Supreme Court of Switzerland (i.e., Federal Tribunal) is set to adjudicate a challenge initiated by the German company Planted against a decision by the Swiss Food Safety Federal Office (Office fédéral de la sécurité alimentaire). As in other cases highlighted above, the Federal Court will have to rule on the Swiss authorities’ decision to limit the use of meat-sounding names (e.g., plant-based chicken) for plant-based products. The Swiss example finds a counterpart in the Canadian experience, where Health Canada was able to anticipate the development of innovative products with a specific regulatory framework. The Canadian Food and Drug Regulations mandate labeling such products as “simulated meat” or “simulated poultry,” including disclaimers and meeting specific nutritional requirements.[45]

In contrast with slow-moving lawmakers at the country level, the International Standardization Organization (ISO) made significant strides in developing a standard on plant-based foods and ingredients.[46] This progress underscores the urgent need for clearer rules and guidance for food manufacturers amidst rapid technological advancements and shifts in consumers’ preferences.

  1. Conclusion

As discussed in this article, when faced with the challenge of regulating innovative products, lawmakers often resort to replicating policy options adopted in other countries or states based on their political affiliations and alignment. The recent ban on cell-cultured meat enacted by Florida, which mimics the Italian law and was challenged in court, is a case in point.[47]

No matter which policy option is preferred, whether to protect consumers and tradition or to unlock the potential of food innovation, legal uncertainty is clearly not a desirable outcome.

Like in other sectors (e.g., automated vehicles), technological progress may outpace lawmakers. Food innovation has been part of the progress of humankind. Over the course of history, significant change in culinary traditions and taste preferences have occurred. It took quite some time, but tomatoes, which were originally from South America and used as ornamental plants, finally overcame the European consumers’ distrust and become the signature ingredient of Italian cuisine.[48]

This paradigm shift, which is driven by the rapid change in consumers’ taste, likely will be reflected in the “average consumer test” that courts around the world apply to rule on deception. As alternative meat products become more and more familiar to the consumer, it will be harder and harder to argue that consumers are deceived.

[1] Kyle Diamantas & Kelly Laudon, What’s in a Name? Updates on Plant-Based Product Labeling Regulations, FDLI Update (Fall 2022).
[2] Case C-422/16, Verband Sozialer Wettbewerb eV v TofuTown.com GmbH ECLI:EU:C:2017:458. The CJEU interprets EU law; its rulings are binding for all EU member states (meaning the countries which belong to the EU).
[3] Miriam Berger, E.U. Rejects Proposal to Ban Labeling Plant-based Foods as Veggie ‘Burgers’, Washington Post (Oct. 23, 2020).
[4] Under EU regulation, the “legal name” can be assimilated to the concept of “standard of identity” found in U.S. regulations.
[5] Beyond Meat, Union végétarienne européenne, and Association Végétarienne de France subsequently joined the claim.
[6] The complaint sought an interim injunction (i.e., Conseil d’État, Juge des référés, 27/07/2022, 465844), which was followed by a ruling of the Council of State (i.e., Conseil d’État, lecture du 12 juillet 2023, Décision n° 465835 ECLI:FR:CECHR:2023:465835.20230712).
[7] Procedural complaints focused on the absence of a countersignature by one of the French cabinet members and failing to comply with notification rules to the EU.
[8] The arguments of the parties are drawn by the abovementioned ruling of the Council of State.
[9] Ibidem, paragr. 10 and Conseil d’État, Juge des référés, 27/07/2022, 465844) at paragr. 9.
[10] Conseil d’État, lecture du 12 juillet 2023, Décision n° 465835, at paragr. 11.
[11] Ibidem, at paragr. 12.
[12] Conseil d’État, lecture du 12 juillet 2023, Décision n° 465835, at paragr. 13.
[13] Ibidem, at paragr. 14.
[14] Ibidem, at paragr. 17.
[15] Ibidem, at paragr. 16–21.
[16] Ibidem, at paragr. 16–21.
[17] In issuing the interim injunction, the court found that the Decree lacked legal certainty due to the generic ban of all “terminology specific to butchers, delicatessens or fishmongers.” The final ruling did not uphold this argument, and the French government cured this issue by replacing the decree with a new one.
[18] Protéines France and Others – Case C-438/23 (consulted on Apr. 28, 2024).
[19] Under EU law, the Advocate General is requested to act as an amicus curiae issuing an opinion recommending the Court to adopt a certain interpretation of the law.
[20] Opinion of Advocate General Ćapeta delivered on 5 September 2024, ECLI:EU:C:2024:704.
[21] Federico Laus, L’approccio precauzionale al rischio nella sicurezza alimentare: riflessioni intorno alla legge sullo stop alla carne coltivata in Federalismi (Mar. 6, 2023); Vito Rubino, La battaglia della carne coltivata dalle aule parlamentari a quelle di giustizia? Considerazioni a margine della legge 172/2023 fra armonizzazione, leale cooperazione e margini di autonomia degli Stati membri, in Rivista di diritto alimentare (January-March 2024).
[22] Kristel De Smedt & Ellen Vos (2022). The Application of the Precautionary Principle in the EU. In: Mieg, H.A. (eds) The Responsibility of Science. Studies in History and Philosophy of Science, vol 57. Springer.
[23] Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November 2015 on novel foods.
[24] FAO & WHO. 2023. Food safety aspects of cell-based food. Rome. https://doi.org/10.4060/cc4855en.
[25] Case C-194/94, CIA Security International SA v Signalson SA and Securitel SPRL ECLI:EU:C:1996:172 and Case C-443/98, Unilever Italia SpA v. Central Food SpA, ECLI:EU:C:2000:496.
[26] Valeria Iorio, Divieto contro la carne coltivata: lo stop di Bruxelles, Corriere della Sera (February 1, 2024)
[27] Central Hudson Gas & Elec. v. Public Svc. Comm’n, 447 U.S. 557 (1980).
[28] Case C-157/14, Société Neptune Distribution v. Ministre de l’Économie et des Finances, ECLI:EU:C:2015:823, para. 76.
[29] E.g., Case C-151/17, Swedish Match AB v. Secretary of State for Health, ECLI:EU:C:2018:938.
[30] International Food Information Council (IFIC), Most Americans have Eaten Plant-Based Meat Alternatives Over the Past Year, According to New IFIC Survey (consulted on September 24, 2004).
[31] Turtle Island Foods SPC v. Soman, 632 F. Supp. 3d 909 (E.D. Ark. 2022).
[32] Naturals Co. v. Stitt, No. 5:20-cv-00938 (W.D. Okla. Nov. 19, 2020).
[33] FDA, Draft Guidance for Industry: Labeling of Plant-Based Milk Alternatives and Voluntary Nutrient Statements (Feb. 2023).
[34] Kyle Diamantas & Kelly G. Laudon, What’s in a Name? Updates on Plant-Based Product Labeling Regulations, Update Magazine (Fall 2022).
[35] E.g., Turtle Island Foods v. Richardson, No. 2:18-cv-4173-FJG (C.D. Mo. Aug. 27, 2018).
[36] Treaty on the Functioning of the European Union. OJ C 326, 26.10.2012.
[37] C-446/08 – Solgar Vitamin’s France and Others, ECLI:EU:C:2010:233.
[38] Conseil d’État, Juge des référés, 27/07/2022, 465844 (at paragr. 8).
[39] Federal courts found Arkansas statutes being vague (cf. Turtle Island Foods SPC v. Soman, 632 F.Supp.3d 909 (2022)), while they upheld Louisiana provisions (c.f. Turtle Island Foods, SPC dba Tofurkey Co. v. Strain, Case No. 22-30236 (5th Cir. Apr. 12, 2023).
[40]Joint FAO/WHO Food Standards Programme – Codex Alimentarius Commission (46th Session), REP23/CAC fao.org/fao-who-codexalimentarius/sh-proxy/jp/?lnk=1&url=https%253A%252F%252Fworkspace.fao.org%252Fsites%252Fcodex%252FMeetings%252FCX-701-46%252F%25E2%2598%2585Final%252520Report%252FREP23_CACe.pdf.
[41] Consumer Goods Council of South Africa v. Food Safety Agency (Pty) Ltd and Others (015445-2022) [2023] ZAGPJHC 728 (25 July 2023).
[42] (Australian) Rural and Regional Affairs and Transport Legislation Committee, Don’t mince words, definitions of meat and other animal products, Camberra, 2022, https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/024739/toc_pdf/Don’tmincewordsdefinitionsofmeatandotheranimalproducts.pdf;fileType=application%2Fpdf.
[43] FSANZ, FSANZ submission to the Senate Inquiry on Definitions of Meat and other Animal Products (July 27, 2021), https://web.archive.org/web/20220521065112/https://www.aph.gov.au/DocumentStore.ashx?id=93a9776b-7e82-4e6c-96db-07dd6ad616db&subId=711532.
[44] Australian Competition and Consumer Commission, ACCC submission to the Senate Rural and Regional Affairs and Transport Legislation Committee’s inquiry into the definitions of meat and other animal products (July 21, 2021).
[45] Canadian Food Regulations (C.R.C., c. 870) – B.01.100.
[46] ISO/DIS 8700 Plant-based foods and food ingredients—Definitions and technical criteria for labelling and claims (Draft International Standard).
[47] SB 1084, 2024 Fla. Sess. Law Serv. Ch. 2024-137.
[48] Pomodoro! A History of the Tomato in Italy New York, NY: Columbia University Press.