Considerations for Innovators in the Food and Beverage Sector
With continuing innovation in the alternative proteins space to meet rising demand for protein (with the global population projected to reach 9.7 billion by 2050),[1] as well as evolving consumer health preferences and environmental concerns, alternative proteins and plant-based foods are big business.
However, is using the term “alternative” or “plant-based” enough to sufficiently identify such foods, and is a lentil-based “sausage” still a sausage?
In the United Kingdom, the UK Supreme Court recently ruled that oat m*lk producer Oatly’s trade mark registration for POST MILK GENERATION is invalid, based on a strict interpretation of a 2013 regulation (also applying in the EU) restricting use of the word “milk” in relation to non-dairy products. The decision follows a long-running dispute in which Dairy UK challenged Oatly’s ability to maintain its trade mark registration for POST MILK GENERATION which was first filed in 2019.
This decision has brand owners considering the broader impacts for marketing of alternative foods products and is an important reminder to choose words carefully when adopting trade marks and marketing language, particularly if participating across global markets.
Developing an Australian Industry Code of Practice for labelling of plant-based protein products
In Australia, the Food Standards Code (Code) administered by FSANZ (Food Standards Australia and New Zealand, the statutory agency governing food safety and labelling standards for food businesses) sets out the current labelling and information requirements for food marketing in Australia, including the use of specific terms.[2]
For example, certain products – such as meat and dairy foods, including cream, fermented milk products, cheese, butter, ice cream, and milk – can only be labelled as such if they meet the definition and compositional requirements set out in the Code.
However, the Australian Code allows the name of a food to be qualified if the context makes it clear that the food is not a food as defined in the Code (so soy/oat/almond milk and peanut butter are presently safe!) and Oatly’s slogan for POST MILK GENERATION is protected under Australian trade mark registration no. 1903933,[3] alongside OATLY NOT MILK, MILKFAKE, and WOW NO COW.[4]
The specific requirements of the Code work in conjunction with the Australian Consumer Law (set out in the Competition and Consumer Act 2010), which generally prohibits misleading or deceptive conduct, or making false or misleading representations about the quality, quantity, composition or origin of products, including food products.
However, following a 2022 report titled “Don’t mince words: definitions of meat and other animal products”,[5] resulting from a 2021 senate enquiry into the use of animal protein labels by alt-proteins manufacturers, the Australian Federal government has now committed to developing an Industry Code of Practice for plant-based and alternative-protein labelling.
This follows report recommendations that an Australian regulatory framework and guidelines to inform labelling and marketing practices for manufacturers of plant-based protein products be developed. Among other things, those leading the inquiry expressed concerns about consumer confusion and the importance of protecting the incumbent industry’s investment of “hundreds of millions of dollars each year to develop and enhance the intellectual property and benefits of red meat in Australia.”
Under scrutiny have been the ability of the non-meat (alternative/plant-based/analogue) sector to use established animal protein descriptors such as ‘meat’, ‘beef’, ‘chicken’, ‘pork’ and ‘lamb’; utility terms, including ‘burger’, ‘patties’ or ‘sausage’; and animal imagery (eg, of a cow).
In 2024, the Department of Agriculture, Fisheries and Forestry (DAFF) established a working group to consider improvements to existing labelling arrangements and commissioned FSANZ to conduct market research on consumer perceptions of plant-based labelling, particularly in relation to the meat and dairy alternatives. The results of the further research (as published on DAFF’s website) suggest that most Australian consumers are not confused by the use of traditional meat or dairy terminology on alternative products and are able to correctly understand these products, although there is some suggestion that the use of animal imagery may decrease understanding.[6]
The next stage is for the joint working group (consisting of stakeholders representing red meat, chicken, seafood, dairy and plant-based industries) to develop an Industry Code of Practice drawing on the research to provide specific guidelines on the future of plant-based and alternative-protein labelling.
Depending on what guidelines are ultimately implemented, restrictions on the use of certain descriptors or imagery in relation to alternative food products could have an impact on existing trade mark portfolios and future marketing communications, which are presently permitted to use these terms – in Australia at least.
Food for Thought
Ultimately, regardless of what further codes are implemented, the question of whether a specific trade mark or brand messaging is acceptable will be governed by the overarching principle of “do not mislead” and the overall impression that a representation leaves in the mind of the consumer. This applies not only to the alternative and plant-based foods sectors, but all marketers and manufacturers. Context is key and careful review of all marketing communications and the effect it will have on the consumer should remain at the forefront of all brand and marketing strategy.
For brand owners operating in the food and beverages space, however, it remains important to keep abreast of the regulatory environment as continued lobbying from incumbent interest holders has potential to make particular food terms more regulated – both locally and internationally where acceptable descriptors may not be consistent across the board. It may be timely to undertake a review of existing and proposed trade mark strategies incorporating at risk terms.
Careful consideration of words, imagery and labelling terminology will be important to ensure effective trade mark protection and longevity, particularly if operating in the global environment – it may also provide opportunities for more innovation and creativity as the sector evolves to provide compelling messaging on its own terms.
Need more information?
If you have any questions regarding food and beverage trade marks and labelling, please contact our author Marie Wong.
[Sidenote: Under Standard 2.2.1 of the FSANZ Food Standards Code, a “sausage” is a mince product that contains no less than 500 g/kg (ie, 50%) of fat free meat flesh; and has a proportion of fat that is no more than 500 g/kg of the fat free meat flesh content…
So is a lentil-based “sausage” still a sausage?]
[1] https://www.foodfrontier.org/wp-content/uploads/2025/01/Food-Frontier-Year-in-Review-2024.pdf
[2] https://www.foodstandards.gov.au/food-standards-code
[3] https://search.ipaustralia.gov.au/trademarks/search/view/1903933?s=2d8b5d91-dbba-45a8-b61a-e8577e8a9c64
[4] https://search.ipaustralia.gov.au/trademarks/search/result?s=f981e49b-1080-400b-aaa1-200798d495f6
[5] https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/024739/toc_pdf/Don’tmincewordsdefinitionsofmeatandotheranimalproducts.pdf;fileType=application%2Fpdf
[6] https://www.agriculture.gov.au/agriculture-land/farm-food-drought/food/plant-based-alternative-product-labelling