When the State Restricts Competition: What Role for Antitrust Enforcement?

By: Pablo Ibañez Colomo (Chilling Competition)

If there are two eternal truths about competition (and strategies to restrict it), they are as follows: First, state regulation is always the most effective mechanism to prevent the emergence or growth of a rival. Second, the stated goal of some of the most blatant restrictions on competition is often framed as protecting consumers.

I am often reminded of these truths when I read about the various tactics the meat industry uses to limit the growth of plant-based alternatives, which are becoming increasingly popular as more environmentally-friendly (and often healthier) options.

One of the most prominent (and likely most effective) tactics involves lobbying governments and legislatures to ban, through legal provisions, the use of terms such as ‘burger’ or ‘sausage’ for vegan or vegetarian products. Given the influence these incumbents wield, it is no surprise that lobbying efforts have yielded the desired outcomes in several Member States and that similar measures are under consideration in others.

These measures are almost always implemented under the guise of consumer protection. Because this justification does little to obscure the true (and fairly obvious) underlying motivation, it is equally unsurprising that regulatory bans have been found by the Court of Justice to contradict secondary EU law, as evidenced by its recent judgment in the Protéines France case.

Against this backdrop, one question is whether competition law has a role to play in addressing conduct and regulation that seeks to hinder the growth of emerging players in this space, including both plant-based and lab-based alternatives to meat.

Since regulatory bans, by definition, involve state intervention, the application of Articles 101 and 102 TFEU is not feasible. In principle, restrictions that cannot be attributed to the behavior of undertakings fall under the domain of the State-action doctrine, as cases like Deutsche Telekom confirm.

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