23 April 2021
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With the ‘future foods’ market set to grow exponentially over the coming years as a result of a global shift towards flexitarian, vegetarian, and vegan diets, the clash between traditional meat producers and innovators has presented policymakers, businesses, and consumers with a vexing philosophical question: what is a burger?

Many battle fronts

In 2018 France outlawed the use of meat terms to describe vegetarian products. During the course of 2019 legislative efforts were made in more than 24 US states to restrict what could be described by meat terms. And it goes beyond the meaning of words like ‘burger’ or ‘sausage’. The European Court of Justice ruled in 2017 that dairy terms such as ‘milk’, ‘butter, ‘cream’, and ‘cheese’ are reserved only for products derived from milk of animal origin, effectively banning the use in relation to plant-based products such as ‘tofu butter’ or ‘vegan cheese’. At the end of 2020 a proposal was considered by the European Parliament to extend the labelling limitations on dairy alternatives to include evocations or descriptors such as ‘substitute’, ‘imitation’ and ‘flavour’ (which passed), as well as to restrict meat terms such as ‘steak’ for referring exclusively to ‘edible parts of animals’ (which did not).

Proponents of the restrictions sometimes refer to the need to protect consumers from misleading labels. Jean-Pierre Fleury, the chairman of Copa-Cogeca, Europe’s largest farming lobby group, warned that ‘we are about to create a brave new world where marketing is disconnected from the real nature of products’. However, any evidence of confusion is scant. Indeed, the UK House of Lords EU Energy and Environment Sub-Committee raised concerns in 2019 that limiting the use of meat terms could in fact reduce consumer clarity, emphasising that it heard no evidence of customers being misled and found that less than 4% of people had ever unintentionally bought a vegetarian product instead of a meat version. Consumers themselves seem nonplussed: around 42% of respondents to a 2020 survey by the European Consumer Organisation said they believed meaty names for plant-based products should be allowed provided they are clearly indicated as vegan or vegetarian, whereas a further 20% do not see a problem at all regardless of whether a vegan or vegetarian label is applied.

Conversely, using meat terms to describe alternatives may simply recognise consumers’ changing attitudes to food. 58% of respondents to a survey by Ingredient Communications approved of the use of such terms for vegetarian products on the basis that ‘it describes the nature and format of the product accurately’. The meanings of words change over time. In Old English and Middle English ‘meat’ referred to ‘food, nourishment, sustenance’, whereas ‘sausage’ meant ‘seasoned with salt’. It may be that now, hundreds of years later, we are reverting to the original usage and understanding of these terms.

There is also predictably an element of protectionism involved. A spokesman for Copa-Cogeca explained that differentiating the markets was one of a number of initiatives to support struggling farmers trying to adapt to a changing world that is becoming more focused on sustainability. The competitive pressure has no doubt been heightened by the strategy of some companies to make their plant-based products look, feel, and taste like meat. Market leaders such as Impossible Foods and Beyond Meat have poured substantial resources into research and development to ensure that their plant-based meat analogues (PBMAs) mimic the sensory characteristics of conventional meat, have a similar nutritional profile, and can be prepared using the same cooking methods (see more in our blog More like the real meal - alternative plant-based proteins). They have been designed specifically to appeal to meat eaters who may wish to reduce their consumption but do not want to sacrifice any other aspects of the meat-eating experience. They pose a direct challenge to traditional producers.

What's in a name?

Nevertheless, there may be another, deeper reason: what motivates conventional producers to jealously guard the use of meat terms may be the same driving force behind supporters of using it more broadly to include plant-based alternatives. Nick Fiddes writes in his 1991 book Meat: A Natural Symbol that ‘The range of soya-based meat-analogues and other substitutes available today testifies to the centrality of the concept of meat, not its dispensability’. What does the word ‘bacon’ mean? Strictly it refers to ‘cured meat from the back or sides of a pig’. But it is also much more than that: it conjures up the sizzling sounds and smells of a Sunday morning fry-up; it is shorthand for the delicious double whammy of salt and fat; it guarantees a filling and satisfying breakfast. Somehow, replacing ‘bacon’ with ‘plant-based strip’ or ‘vegan piece’ does not have the same effect.

Using meat terms allows plant-based food producers to convey information about the taste and texture of their product, its substitutability and how it fits within a meal, and the possible methods of preparation and cooking. It speaks to a specific mindset and culture of eating, appropriates it, and adapts it to a new way of consuming food. It evokes sensations and sparks the imagination in a way that describing a vegetarian burger as a ‘disc’ or a sausage as a ‘tube’ does not. This may be what David Haines, chief executive of Upfield which makes Flora spreads, had in mind when he spoke of ‘censorship’ and Jean-Pierre Fleury when he talked about ‘cultural hijacking’.

The arguments over what is ‘meat’ and whether something can be called a ‘burger’ transcends linguistic considerations. Ultimately it is an emotive debate where words like ‘sausage’ carry the weight of complex moral, economic, scientific, and policy questions around environmentalism, sustainability, climate change, health, traditional agriculture, and innovation. It demonstrates the power in names, labels, and branding beyond simply denoting what something is to evoke strong feelings and concepts. How a business presents its products can be just as important as the product itself.

 



Labelling so-called "functional foods" or "nutraceuticals"

Chris Denison, Partner and Patent Attorney at Mewburn Ellis comments:

"There is tight regulation in the EU and UK about the labelling of so-called “functional foods” or “nutraceuticals”, namely foods that are associated with particular health benefits going beyond their role in nutrition as part of a balanced diet. Some examples are foods containing ingredients that have been shown to lower cholesterol or to promote beneficial gut flora. It is not permissible to claim that a product sold as a food, rather than a medicine, can treat, cure or prevent disease. Yet when it comes to seeking patent protection in this area, this is precisely the kind of language that the European Patent Office likes to see in patent claims for functional foods."

Our future foods team has a particular interest and extensive experience in this challenging area. Please direct any questions about this to Chris.
Jacqueline is a Partner and Chartered Trade Mark Attorney at Mewburn Ellis. She has extensive experience in managing large portfolios, particularly advising on international filing strategies and foreign filings and prosecution. Jacqueline's work includes acting in oppositions before the UKIPO and advising on multi-jurisdictional disputes, with extensive experience in negotiating settlement agreements. She has also been involved in Nominet and UDRP proceedings relating to domain names.
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