The plant-based ‘dairy’ variations of Alpro: soya becomes dairy?

The (plant-based) dairy industry is still keeping minds occupied. The European Court of Justice held last summer that the protected terms ‘milk’, ‘yoghurt’ or ‘cream' could not be used as the name or designation of a non-dairy product. Since then, the name 'soya milk' has been a no-go. But how does this stack up if they say that a product is a variation on yoghurt, or an alternative to dairy? This is not unlawful, according to a recent finding by the Court of Appeal in Den Bosch in what has now become the much-discussed case of the Dutch Dairy Association (Nederlandse Zuivelorganisatie) against Alpro Soja.

The DDA argued that Alpro was acting unlawfully by using dairy names on packaging and in adverts and by presenting its products as being dairy products. According to the Court of Appeal, the injunction against designating vegetable products as dairy products was confined to the name of the product. This did not mean that the protected names could not be used at all. But, this doesn't alter the fact that the method of presentation might sometimes still create the impression that the products are dairy products. For instance, an advert saying 'Now on the yoghurt shelf' would be illegal, despite the slogan 'enjoy plant power'.

The conclusion? 'Soya milk' is history, but 'Soya drink – the plant-based milk variation' is just fine. Even the usual milk top colours (white, green, blue) and the comment 'on the dairy shelf' are fine. But think about this: even if advertisers stick to these principles, the circumstances might still result in a false impression being given. As matters stand, it's a confusing situation at best. 

Dominique Geerts