In its judgment, the Federal Supreme Court (the Court) dismissed the appeal of Danone Schweiz AG against a judgment of the Administrative Court of the Canton of Zurich, confirming the prohibition on marketing an oat drink bearing the front-of-pack statement "SHHH… THIS IS NOT M[*]LK". The case concerned whether the product's packaging, which identified the product as an oat drink on the reverse side but prominently displayed the stylised term "M[*]LK" on the front, complied with the Swiss rules on food labelling and protection against deception.

Referring to its recent case law on vegan product designations and the corresponding case law of the Court of Justice of the European Union (CJEU), the Court held that the protected designation "milk" may not be used for plant-based products, either directly or indirectly through typographical modifications or negative claims, where it constitutes the primary element of consumers' perception. The Court found that the stylised term "M[*]LK" remained the dominant feature of the packaging despite the accompanying statement "THIS IS NOT", rendering the product presentation unlawful.

The Court further rejected the argument that consumer surveys demonstrated an absence of deception, holding that compliance with statutory labelling requirements does not depend on whether most consumers correctly identify the product's nature. The appeal was therefore dismissed.

For more information, see here.