Regulation (EU) 2023/1115 – which is also known as ‘EUDR’ (EU Deforestation Regulation) – is a major piece of EU environmental legislation with a significant impact on the supply chains of food and non-food commodities that most contribute to deforestation and forest degradation. These commodities currently include coffee, cocoa, soy, cattle, oil palm, rubber and wood as well as certain derived products. The EUDR requires concerned businesses to set up a complex due diligence system, which should ensure that products placed on the EU market and exported from it are deforestation-free besides being legally produced in their country of origin. From this perspective, the EUDR forms part of an array of legislative measures that the EU has introduced over the last few years to ensure greater transparency and sustainability of modern supply chains, which include, among others, the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CS3D).

During the second semester of 2024, the EUDR featured regularly and prominently in specialised media outlets. This because of the concerns that were voiced by various stakeholders regarding their preparedness to meet the obligations imposed by the EUDR by its entry into application. For this reason, the EUDR’s application date, initially foreseen on 30 December 2024, was eventually postponed by one year, following the adoption of Regulation (EU) 2024/3234.

Even if it is not yet fully applicable, it is quite interesting to observe that the EUDR is already producing effects in the EU market in terms of business practices. Some of these practices go beyond the necessary adjustments that companies affected by the EUDR are expected to implement to comply with its due diligence requirements.

In a previous post on this blog, EUDR’s impact and implications were analysed through the consumer lens. One of the main conclusions that were reached there is that, in the future, it will be difficult for businesses supplying commodities and products subject to this EU regulation to highlight their deforestation-free status – and, thus, their added value in terms of environmental sustainability – through product labelling, marketing, and/or advertising.

Now, one year later, this analysis needs to be complemented by considering some of the most recent market developments that EUDR’s adoption has prompted, however, I would say, unintendedly.

I am primarily referring to the surge of ‘soy-free’ or ‘no-soy’ claims made on the packaging or in advertisements of plant-based foods currently being sold across the European market.

Generally portrayed as more environmentally friendly than meat and meat products, plant-based foods often include soy and soy products as ingredients in their formulation, among others, to guarantee the provision of high-quality proteins to the human diet.

However, with the EUDR singling out and – please allow me to say – demonising soy as one of the main culprits of deforestation, various manufacturers of plant-based foods seized the opportunity to actively promote product recipes without soy in it.

‘Free-from’ food claims – like the ones for soy that are here under exam – are by no means a novelty in the agri-food sector. On the contrary, they are a powerful marketing tool, which, by leveraging on the preferences, beliefs or even the fears of specific consumer groups, can ultimately drive and influence their purchasing decisions. ‘GMO-free’ or ‘no-GMO’ claims are a case in point here insofar as they target consumers who are overall mindful of natural diets or simply worried about the safety of what they eat. By the same token, environmentally conscious consumers are more likely to buy products that do not contain ingredients that may negatively impact the sustainability of our planet, as it has been the case in the past for palm oil and now it is happening for soy.

The central question here is whether this new wave of ‘free-from’ claims about soy we are seeing rise in the European market is legally substantiated or, instead, presents risks for the companies making them.

As a general rule, ‘soy-free’ and ‘no soy’ claims can be made in the EU if food companies ensure compliance with the legal principles governing fair information practices, which are enshrined in art. 7 (1) of Regulation (EU) No 1169/2011 on the provision of food information to consumers. This provision states, among others, that food companies cannot highlight the characteristics of their food products if other foods pertaining to the same product category possess similar characteristics. Applying this principle to the case in hand, this means that ‘soy-free’ and ‘no soy’ claims can be lawfully made, for instance, on plant-based products if there exist other competing products on the market with soy as an ingredient.

However, things can get more complicated if one considers that soy is regulated as an allergen in the EU and, as such, listed in Annex II of Regulation (EU) No 1169/2011. Under EU food law, allergens must be properly highlighted in the list of ingredients whenever they are added and used intentionally in the formulation of another food product. Besides, it is often the case that the presence of allergens – even if it only amounts to traces – cannot be excluded with absolute certainty in a finished food product, due to technically unavoidable cross-contaminations that may occur during the production process and/or result from the use of ingredients provided by suppliers. It is because of this that disclaimers such as ‘May contain’ or ‘May contain traces of’ – which are also known as Precautionary Allergen Labelling (PAL) statements – are very common on the European market and used to warn consumers suffering from food intolerances or allergies about the possible accidental presence of one or more ingredients they should avoid ingesting.

Now this raises the fundamental question as to whether current market practices where a ‘soy-free’ or ‘no soy’ claim coexists with a PAL statement in the product labelling, marketing and/or advertising are legitimate under EU law.

In our view, such practices are of dubious legality and, as such, not exempt from legal, economic and reputational risks.

To start with, stating that a food product is soy-free while admitting, at the same time, the accidental presence of soy in the finished product could be regarded as contradictory consumer information. As such, it might be construed as being contrary to the legal principle that stipulates that food information – including that provided on a voluntary basis – must be accurate, clear, and easy to understand for the consumer, based on the joint reading of art. 7 (1) and 36 (2) lett. a) and b) of Regulation (EU) No 1169/2011. 

Also, the use of additional statements (for instance, on packaging) clarifying that soy is not used intentionally in the product recipe and/or that the product may contain that ingredient (or traces of it), because of cross-contamination, is no guarantee that ‘soy-free’ and other similar claims will not be subject to consumer complaints or challenged by enforcement authorities. All in all, additional statements of the type here under exam do not seem suitable to prevent the occurrence of situations where consumers who are allergic to soy – and even the most careful ones – are exposed to the health risk resulting from its consumption. This even in spite of the fact that authoritative food science tells us that soy is not amongst the most dangerous allergens from a public health standpoint, as it is instead the case for other food allergens that can provoke severe reactions (e.g., anaphylactic shocks) such as peanuts and seafood (FAO & WHO 2023).  

In conclusion, while ‘soy-free’ and ‘no soy’ claims might be effective marketing tools to boost sales amongst consumers following vegetarian diets and/or keen on adopting sustainable consumption patterns, their use must be carefully pondered by food businesses. As shown above, the improper use of claims that refer to the absence of soy in food products might, under certain circumstances, mislead consumers, put their health at risk and, ultimately, expose food companies to sanctions and other enforcement measures. These considerations are particularly relevant now considering the legislative efforts deployed by the EU following the publication of the Green Deal in 2019 with a view to curbing false, unsubstantiated, and ambiguous environmental claims on consumer goods and their packaging, including food products.