When purchasing meatballs, one would expect them to be produced from an animal-source. However, with the advancement in food technology and the increasing awareness of different dietary preferences, food manufacturers have been busy creating substitutes for animal-based products from plants. Examples include plant-based milk made from oat, soy, or almond, and meat substitutes produced by extracting proteins from soybean, wheat, or pea.
While these products are made purely from plants, food manufacturers often refer to these plant-based products with wordings traditionally used to connote animal products, such as “meatball”, “burger”, “milk”, and “cheese”. The use of such terminologies on labels of vegetarian products has been controversial, and judicial decisions have assessed whether such wordings would lead to consumer confusion. Some jurisdictions have legislated to control use of “meaty” terminologies for plant-based food products. For instance, the Court of Justice of the European Union has held that pure plant-based food products cannot be marketed with designations that are reserved under EU Regulation No. 1308/2013 for animal products, such as “milk”, “cream”, and “butter”. As a result, plant-based “dairy” products cannot be sold under descriptions such as “almond milk” or “tofu butter” in the European Union.
Regulatory regime and trade mark protection in Hong Kong
While the existing legal regime in Hong Kong does not go as far as the European Union to directly prohibit use of animal food designations for plant-based products, Hong Kong has various laws and regulations to control food product labelling, including plant-based meat and dairy substitutes.
For pre-packaged food, Schedule 3 to the Food and Drugs (Composition and Labelling) Regulations (Cap. 132W) provides a list of mandatory information to be provided, such as food name, list of ingredients, and name and address of the manufacturer or packer. To comply with this regulation, a list of ingredients of a plant-based food product may include water, soy protein, and coconut oil.
Further, food manufacturers and distributors are prohibited from applying false trade descriptions to their goods under the Trade Descriptions Ordinance (Cap. 362). The Customs and Excise Department prosecuted a supermarket proprietor in 2017 for falsely labelling their frozen catfish fillets as “grouper fish meat” and “sole fish fillet”. Therefore, a plant-based meat product labelled as “Ham Steak” without any clarification may constitute a false trade description.
Apart from complying with regulatory requirements, food manufacturers must also consider how to brand plant-based food products, and to protect them under the Trade Marks Ordinance (Cap. 559). Food manufacturers in this area need to carefully balance between selecting a distinctive mark which would hint at the nature of their product without being descriptive or deceptive. For instance, registration of “ZEROMEAT” for meat-substitute products was refused for registration for being descriptive of the characteristic of the goods, whereas “PLANTY” has been accepted for registration for meat substitutes.
As for deceptiveness, European Union judicial decisions have ruled that trade marks containing the word “MEAT” in respect of meat substitutes are deceptive. Applications for the marks “FYSCH” and “SHRYMPS” have also been refused in the European Union for fish and seafood substitutes for the same reason. The Hong Kong Court and Trade Marks Registry would adopt the same position if there is a sufficiently serious risk that the local public would be deceived as to the nature of the goods in question. However, each case would be assessed based on its specific fact-pattern, and would depend on local consumers’ expectations. Marks such as “BEYOND BACON” and “OMN!PORK” have been accepted for registration in Hong Kong, likely on the basis that consumers will recognise that the combinations of words suggest that the products are not meat. However, the findings of different Trade Marks Registries can be uncertain. For instance, a figurative mark comprising of a bovine wearing a cape has been accepted for registration in the United Kingdom and Hong Kong in respect of meat substitutes. However, the same mark has been partially cancelled in the European Union for being deceptive of meat substitutes as the mark would indicate that the goods contain meat or dairy products, which is not the case for meat substitutes.
In light of the increased diversity in the varieties of food products, we expect the legal regime in Hong Kong will evolve to accommodate for creativity in marketing and product development, while ensuring clear food ingredient information and consumer protection. The desire to use names associated with animal products as a marketing strategy is understandable, but there must also be adequate safeguards to protect consumers from being misled when selecting their food products.
