3 October 2017
Dr Jeanette Rowley comments on the European Court of Justice decision in Verband Sozialer Wettbewerb eV v TofuTown.Com GmbH.

The problem

Referring to Regulation (EU) No 1308/2013, the European Court of Justice ruled in Verband Sozialer Wettbewerb eV v TofuTown.com GmbH (TofuTown) that TofuTown are prohibited from using traditional words of ordinary meaning, such as Veggie 'Cheese' Tofu ‘Butter’ or ‘milk’ of soya (or other)origin, to describe its plant-based products.

This decision is rooted in Council Regulation (EEC) No 1898/87 (EEC 1898/87): a Regulation for ‘the protection of designations used in marketing of milk and milk products’. Its preamble mirrored the (then) EEC drive to maximise the potential of the profit-driven dairy industry. The drive to squeeze out competitors is made clear. EEC 1898/87 states that the Commission needs to ‘follow closely developments in the market for milk products and competing substitute products and to report back to the Council’; and that ‘Member States have implemented national measures to curb the manufacture and marketing of these products and must maintain regulations’. Under the regulations, ‘milk’ is ‘exclusively the normal mammary secretion obtained from one or more milkings [of a nonhuman animal] without either addition thereto or extraction therefrom’. Words such as ‘butter’, ‘cheese’, ‘yoghurt’, ‘cream’ and ‘buttermilk’ are reaffirmed in TofuTown as product descriptions exclusively assigned to the dairy industry. This decision not only hits hard plant-based businesses, it also protects the exploitative, inhumane dairy industry and impacts negatively on veganism.

Shared normative language

Vegans drink a range of milk products. They also eat cheese, yoghurt and cream. In ordinary everyday conversation, these products are referred to in the context of their traditional usage. Vegans pour almond or soya milk, for example, on their breakfast cereal; they eat ice-cream with strawberries for desert, they make cheese salad, snack on yoghurt sold in familiar plastic pots, and they bake dauphinoise potatoes with non-dairy cream. They don’t say ‘I’ll go to the shop to buy some plant based drink’, or ‘let’s have a sandwich of onion and fermented block’. They say ‘I’ll get some milk’, ‘let’s have a cheese and onion sandwich’ and ‘do you want cream on your fruit?’

Exemptions and confusion

There are exemptions to the rules. EEC 1898/87 allows the use of terms that are established in traditional usage. These include: ‘coconut milk’, ‘peppermint cream’ (and other similar sweets) ‘cream soda’, ‘salad cream’, ‘cocoa butter’, ‘jelly cream’, ‘butter beans’, ‘lemon cheese’ and other fruit cheeses, ‘cream soup’ and ‘cream crackers’. Attempts by the UK to include ‘soya milk’, however, proved much more controversial despite this product being on sale in the UK for many years prior to the Regulation and well established in the UK as a non-dairy staple of vegans.

The impact on veganism

The decision has ramifications for veganism and transitioning vegans because it denies the reality of normatively referring to these everyday items. It marginalises vegans as a community ‘deprived’ when in fact ‘milk’, ‘cheese’, ‘yoghurt’ and ‘cream’ have long been in the vocabulary of vegans. They are words integral to everyday conversation, used in vegan recipe books, in online searches, on discussion websites, heard in news bulletins and found on forums. They are words central to ‘explanations’ of some of the delectable meals vegans eat. They are shared, common terms that help normalise veganism and depose the ridiculous myths about vegans, salad-leaves, and lentils.

A prima facie contradiction in values

The decision in TofuTown emphasises an existing prima-facie contradiction in values. The Council of Europe confirms that veganism is within the scope of human rights. This is no surprise. The former Commission of the European Court of Human Rights, in the early 1990s, found that veganism comes within the scope of Article 9 of the Convention. Veganism is within the scope of human rights protection, yet exclusive human rights deny the moral standing of other animals and entrench prejudice against them.

Vegans present to human rights the core human value of compassion for suffering others. It is accepted, but the EU definition of a range of most commonly referred to food staples as originating from nonhuman animals, is a sullying linguistic assault on their moral standing. Assigning exclusive use of vocabulary to a profoundly exploitative, violent industry is a mechanism of speciesist prejudice that sends nonhuman animals back to the margins.

We all know what is meant by ‘skin cream’, and we know what avocado butter and coconut or almond milk are but the decision in TofuTown dissects words from normative meanings. It validates and justifies speciesist exploitation and suffering through a weaponising of language and also cuts sharply into veganism. As Roger Yates reminds us ‘language use is a major means of transmitting normative values’. The norm promoted in TofuTown emerges from a double-edged sword of words that does violence to the moral standing of nonhuman animals and veganism.