A Victory for Clarity: The Turku Administrative Court Decision Ensures Transparent Labelling for Plant-Based Foods

The Supreme Administrative Court handed down a decision on 23 February 2024 whereby it dismissed the application for leave to appeal against the Turku Administrative Court’s decision H1193/2023 of 19 June 2023. Following the dismissal, the decision handed down by the Turku Administrative Court remains in force and final. The case concerned e.g. the labelling markings of Kavli Oy’s (“Kavli”) plant-based products and how they were understood by the average consumer.

The decision clarifies the labelling requirements for plant-based foods whose market and consumption are increasing. The ruling provides guidance on the characteristics that companies are allowed to communicate about plant-based foods and the relevant products to whose characteristics plant-based foods can be compared.

Borenius represented Kavli in the matter.

Under Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers (the “Food Information to Consumers Regulation”), food information must not be misleading by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients.

On 6 November 2020, the Turku Building and Permit Committee (the “Committee”) handed down a decision whereby it ordered Kavli to remove all labelling markings stating that the products were lactose-free and dairy-free from its plant-based food products. The Committee held that the terms “lactose-free” and “dairy-free” should not be used in connection with vegan products since vegan products are lactose-free and dairy-free as such. The Committee was of the view that vegan products constitute their own separate market in Finland, and they must not be marketed in a way that suggests that they have some special characteristics that in fact all similar vegan foods have.

Kavli lodged a complaint against the decision before the Turku Administrative Court (the “Administrative Court”). The Administrative Court overruled the Committee’s decision and held that both “lactose-free” and “dairy-free” are allowed and lawful markings for plant-based products and they do not mislead the consumers as to their characteristics.

In its judgment regarding the use of the words “lactose-free” and “dairy-free”, the Administrative Court referred to the judgment handed down by the Court of Justice of the European Union in Teekanne Case C-195/14. Pursuant to the judgment, the assessment of the capacity of labelling to mislead must be based on the presumed expectations of the average consumer who is reasonably well informed and reasonably observant and circumspect as to the characteristics of the food.

The Administrative Court noted that even though the Food Information to Consumers Regulation does not define what kind of foods are to be considered similar, the objective of the Food Information to Consumers Regulation is to achieve a high level of protection to ensure that consumers can make informed and safe choices about the food they consume. Pursuant to the Administrative Court’s decision, similar foods should be interpreted as products which the consumer might choose between in a real purchase situation.

The Administrative Court also found that in addition to people who follow a vegan diet and choose between products that are completely plant-based, many people who do not follow a strictly vegan diet are also increasingly consuming vegan products. Here, the choice of food is made for the same purpose but between dairy-based products and plant-based products. Therefore, the Administrative Court held that for example dairy yoghurt and Kavli’s products can be considered similar foods within the meaning of the Food Information to Consumers Regulation. Consequently, when dairy products and dairy-free products are considered, not all similar foods are lactose-free and dairy-free and thus, labelling plant-based foods as “lactose-free” or “milk-free” does not suggest that the food has such characteristics that all other similar foods have.

The Administrative Court points out that it is not obvious for the average consumer to understand that even though the labelling states that the products are vegan, the products do not contain even the smallest amount of dairy or lactose, which could endanger the health of the consumer. The Administrative Court concludes that truthful statements of plant-based products that could affect the consumer’s health should not be assessed too strictly.

Kavli’s labelling markings for vegan foods that indicated that the products were lactose-free and dairy-free were not misleading to the average consumer and the Administrative Court subsequently repealed the Committee’s decision.

Most importantly, the decision provides clarity for the marketers of plant-based products with regard to the required labelling markings for such products. Therefore, it is significant for the producers of plant-based products.

Especially in this current market situation where consumers who do not follow a vegan diet are also increasingly consuming plant-based products, it is important that the labeling markings of these products are informative and clear. From the perspective of the average consumer, it is essential that food companies are allowed to communicate that in addition to being vegan, the marketed products do not contain dairy or lactose. This ensures that consumers have all the information they need to make an informed and safe purchase decision.