In a case brought before the Conseil d’État by a number of French companies, the urgent applications judge suspended a new decree that bans the use of “butchery or charcuterie” terms such as "steak" to refer to plant-based protein products. The decree was due to come into force on 1 May. The judge took the view that there was a serious doubt as to the legality of this ban. In July 2023, when considering an appeal against a first decree on the same topic, this doubt had already led the Conseil d'État to refer to the Court of Justice of the European Union (CJEU) for clarity on whether a Member State could adopt national measures regulating or banning these types of names. Pending a response from the CJEU, the Conseil d'État suspended the new decree on the grounds that it would also seriously and immediately harm the interests of producers who only sell this type of product.
In a decree of 29 June 2022, the French Government banned the use of “butchery or charcuterie” terms to refer to plant-based protein products. In response to an appeal, the Conseil d'État’s urgent applications judge partially suspended this first decree in July 2022. Before making a decision on the application to annul the decree, the Conseil d'État referred a number of preliminary questions to the Court of Justice of the European Union (CJEU) in July 2023.
A new decree of 26 February 2024 repealed the 2022 decree, while incorporating virtually identical measures, with effect from 1 May. It clarified the ban with a list of prohibited terms, such as "steak", "escalope" and "jambon" [ham]. Following an appeal by six companies affected by the ban, the Conseil d'État today suspended the second decree.
The judge noted that there was serious doubt as to whether such national measures could be adopted under the European regulation of 25 October 2011 on Food Information to Consumers (known as the INCO regulation). It was this doubt that prompted the Conseil d'État to refer questions to the CJEU last July. The CJEU is due to deliver its ruling in the coming months.
The judge also found that a ban from 1 May would seriously and immediately harm the interests of companies marketing such products. As a result of the decree, French companies would have to stop using names such as "plant-based steak", "plant-based bacon" and "plant-based lardons". Some of these terms have been used for a long time, have become established in the minds of consumers, and appear on restaurant menus. It was clear from the investigation that the ban on 1 May is likely to result in a significant loss of income for two of the applicant companies, whose sales are mainly comprised of these products. The ban also entails costs associated with changes to packaging and marketing strategies, and a temporary halt to sales. In addition, their competitors, who manufacture their products in other European countries, will be able to continue using these names to sell their products in France after 1 May. Thus, with regard to the matter of urgency, which was raised by the appellant companies, the investigation failed to show that rapid implementation of the ban would be sufficiently in the public interest.
Taking the view that there was serious doubt as to the legality of the decree and that the condition of urgency had been met for the applicant companies, the Conseil d'État’s urgent applications judge suspended the new decree.
Read the decision (in French)