It's been almost exactly one month since the CJEU issued a judgment which has left many non-lawyers (and also some lawyers) quite puzzled. The judgment may not concern consumer law strictly speaking, but will be of certain interest to those interested in consumer law and policy - and even more so with the holidays approaching.
In PB VI Goods, the Court has sided with a German association in maintaining that PB VI Goods could not sell a beverage under the name "Virgin Alkoholfrei Gin".
The decision is based on Regulation EU 2019/787, which concerns the "definition, description, presentation" and labelling of "spirits", including gin. The Regulation's stated aims include consumer protection, market transparency and fair competition, as well as the safeguarding of the Union's traditions and reputation in the field of spirits. This includes the protection of certain geographic designations All three variants of Gin mentioned in the Regulation (Gin, Distilled gin and London Gin) have a minimum alcohol content of 37,5% and have to fulfil with other requirements concerning production process and allowed ingredients.
Based on these facts, it is not too surprising that the CJEU declared that labelling a drink as "alcohol free Gin" goes against the Regulation: if that would be allowed, it would e.g. not be clear why a "reduced alcohol Gin" would have to be treated differently, whereas it is the Regulation's specific goal to prevent any variations other than those in line with the original designation to use the regulated denominations - not only in order to protect consumers against confusing terminology, but also to protect producers against exploitation of their reputation by competitors who are not bound by the same production standards.
The Court also refers to its previous - and equally strict - decision in C-422/16, Tofutown.com, which similarly decided that plant-based drinks could not use the term "milk", even if indicating clearly in their name their non-dairy nature. The only allowed exceptions in that case were those made already within the relevant European rules, e.g. for products traditionally named as "milk" in some countries.
PB VI's claim that the rules concerning spirits denominations may be against article 16 CFREU (freedom to conduct a business) were dismissed by the CJEU after a short analysis on the basis of the principle of proportionality. The restrictions were found to be appropriate to pursue legitimate aims (those discussed above) and not excessive, in particular due to the fact that they do not affect the ability to produce and market the concerned beverages, but only to call them "gin". For advocates of consumer choice and conscious lifestyles, the Court's argument that the designation may be misleading because of the role that "flavouring ethyl alcohol of agricultural origin with juniper berries" (and not, thus, water) plays in the production of Gin may sound formalistic and inconsequential - as consumers looking to replace alcoholic beverages with alcohol-free variants will likely be aware of the meaning conveyed by the terminology.
At the same time, the literal meaning and spirit of the rules are quite unambiguous and the operation here consisten – regulated denominations are strictly enforced. Furthermore, there is no sense that a different approach could have plausibly anticipated on future developments as the European Parliament has just signalled a wish for stricter protectionof “traditional” food denominations, which would ban the use of “meat-related” names for non-meat products (think of “plant-based burgers” and similar terms). BEUC was among the first to point out that most consumers feel absolutely not confused by the practice, as well as to argue that the association is actually necessary/hepful for food replacements to find their audiences and play their role in the protein transition.
Similarly, it seems that the rule concerning alcoholic beverages is likely to play out quite differently for different producers, favouring incumbents - whereas, for instance, an established gin producer will easily be able to leverage their brand recognition to also market their non-alcoholic product lines (imagine something like "Gordon's dry alcohol free"?), newcomers who want to focus on non-alcoholic drinks will not be able to signal their niche to customers will find it much more difficult to do so.
We will keep an eye out for further developments!
