The French Decree on the Prohibition of Meat Designations for Plant-based Products

By Decree No. 947 of 29 June 2022, (hereinafter the ‘Decree’) France has decided to prohibit the use of names directly or indirectly referring to meat on processed ‘meat-like’ products containing protein of plant origin, with few exceptions.

The Decree is meant to cover only processed food products manufactured in France,[1] which means that products legally manufactured or marketed in another EU Member State or a Country that is part of the European Economic Area are exempted from the new rules. In other words, the Decree contains a mutual recognition clause.[2] The definition of processed products is provided by Regulation (EC) No. 852/2004 on the hygiene of foodstuffs, which states that they are to be understood as products that have undergone actions that substantially alter them, such as heating, smoking, curing, maturing, drying, marinating, extracting, extruding, or a combination of these processes.[3] Conversely, products simply divided, separated, cut, sliced, boned, minced, skinned, ground, chopped, cleaned, trimmed, husked, chilled, frozen, deep-frozen, or thawed are not considered processed.[4]

The basis for the new provisions is found in the French Consumer Code (‘Code de la consommation’) where Article L412-10 of the French Code provides that “[t]he names used to designate foodstuffs of animal origin may not be used to describe, market or promote foodstuffs containing vegetable proteins. This provision calls for the adoption of a decree to determine the part of vegetable proteins beyond which this denomination is not possible.” According to the EU food legislation, on the other hand, there is no ban on using meat product names on food produced without meat, since Regulation (EU) No. 1308/2013 establishes a common organization of the markets in agricultural products, which lays down standards for the composition and legal names of foodstuffs, and does not provide rules for meat products as it does for dairy products.

While there is no such explicit prohibition in harmonized EU laws, food labelling and advertising must not be misleading,[5] ambiguous, or confusing for the final consumer.[6] The new French Decree, accordingly, aims to ensure that French processed foodstuffs containing non-animal proteins do not carry a name set by law (i.e., a ‘legal name’) for products whose compositional standards do not allow for the addition of plant proteins or any other name that explicitly or implicitly refers to animals or products derived therefrom. Even common names that consumers generally associate with meat products are now prohibited (Article 2 of the Decree).

Exceptions to the ban are foreseen. Indeed, the designation of foodstuffs of animal origin may be used for foods that also contain vegetable protein in a maximum percentage established by the Decree (Annex I) or when such presence is provided for by other applicable regulations. For example, the maximum amount of vegetable protein (expressed as dry extract) in a product called ‘bacon’ or ‘sausage’ or ‘ham’ is 0.5 percent (in these cases, the vegetable protein content is derived solely from the seasonings and herbs in the product), while in ‘nuggets,’ it is 3.5%. If the designation is ‘omelet’, the maximum content is 0.1 percent.

Another exception is flavorings or food ingredients with flavoring properties used in food products in accordance with Regulation (EC) No. 1334/2008: they can use the ‘reserved’ designation even if they are not of animal origin.

Sanctions for products that will not comply with the Decree (if and when it will come into effect) could be as high as EUR 1,500 for individuals and EUR 7,500 for legal entities.[7] The new Decree was supposed to come into effect on October 1, 2022, but on July 27, 2022, the French Conseil d'État (Council of State), France's highest administrative court, issued an interim urgent order of reprieve at the request of Protéines France (a consortium of French companies for the development of plant proteins).[8]

The Judge agreed with the petitioner that the abrupt change of the long-used names for many products as of Oct. 1, 2022, both on packaging and in advertisements, would impose significant burdens on operators, and would thus cause serious and immediate harm to them, disproportionate to the Decree's goal of better informing consumers. In other words, no urgency in terms of public interest justifies such a short enforcement date (only three months from publication).

In addition, the Court’s ruling states that the list of names whose use the Decree prohibits is arbitrary, as it does not provide a valid rationale as to why and how these names were selected, leaving an area of uncertainty for operators, in contrast to the constitutional requirement of clarity and accessibility of the law and the principle of legality of offenses.

Lastly, according to the Judge, the Decree is potentially in violation of Regulation (EU) No. 1169/2011 on food information to consumers, prohibiting customary or descriptive names in a matter governed by harmonized EU law.

The urgent summary Court’s ruling was only the first step in this process, and a full ordinary trial is expected in the coming months, at the end of which the Conseil d'État will decide whether the Decree should be declared permanently inapplicable.

[1] Article 1 of the Decree
[2] Article 5 of the Decree
[3] Article 2(m), Regulation (EC) No 852/2004
[4] Article 2(n), ibid.
[5] Article 7, Regulation (EU) No. 1169/2011 on food information to consumers
[6] Article 36(2)(b), ibid.
[7] Article 7 of the Decree
[8] Conseil d'État, N° 465844, ECLI:FR:CEORD:2022:465844.20220727