Does the UK Oatly “milk” case pose any risks in Australia?
In February 2026, Swedish oat drink company Oatly was reportedly prevented in the United Kingdom from using the word “milk” in marketing its plant-based products. Oatly had trade-marked phrases such as the slogan “Post Milk Generation” in the UK. However, following objections from peak industry body, Dairy UK, that such terms breached food identity regulations (which prescribe “milk” as coming from milking animals), the UK’s highest Court found that the use of the word “milk” in this context was contrary to regulations and was not descriptive.
Subsequently, Oatly lost the ability to use its trade-marked slogan.
This article explores whether the same legal risk applies to the marketing of plant-based products in Australia.
How do other countries approach plant milk products?
The UK position aligns with broader international efforts to standardise dairy terminology.
At an international level, Codex Alimentarius (international food standards intended to both improve safety and facilitate global trade) includes the Codex General Standard for the Use of Dairy Terms (CGSUDT). The CGSUDT defines “milk” as the normal mammary secretion of milking animals and generally reserves dairy terms for products derived exclusively from milk. While Codex standards are not automatically binding, they are intended to influence domestic regulatory frameworks and trade expectations.
In the European Union, courts have consistently upheld the reservation of dairy terms for animal-derived products. Other jurisdictions, such as Canada, also maintain protective approaches. By contrast, the United States has taken a more flexible approach in recent regulatory guidance, focusing on whether consumers are misled rather than imposing a blanket prohibition on plant-based products using dairy-style descriptors.
However, while more flexible, draft guidance issued by the US Food & Drug Administration in 2023 referenced consumer research that demonstrated that:
- US consumers lacked an accurate understanding about the specific nutrients in plant-based milks;
- a majority of US consumers believed plant-based milks to be healthier than animal milk;
- a significant proportion found that plant-based products with the term “milk” in their name were nutritionally similar to milk; and
- the term “milk” created a more favourable impression of almond products when compared to other descriptors like “almond drink”.
The global landscape therefore ranges from strict statutory reservation (UK/EU model) to consumer-perception-based regulation (US model).
What is the legal position on plant milk products in Australia?
Although the Codex General Standard for the Use of Dairy Terms exists internationally, it has not been directly incorporated into Australian domestic law. This is despite the recently finalised free trade agreement with the EU restricting the use of a number of dairy origin descriptors (such as parmigiano Reggiano, feta, munster, etc.), which does not require Australia to adopt stricter EU standards or even Codex Standards in relation to dairy terms beyond prescribed origin descriptors.
Food labelling in Australia is primarily governed by the Australia New Zealand Food Standards Code (Food Standards Code) administered by Food Standards Australia New Zealand (FSANZ), together with the general prohibition on misleading or deceptive conduct under the Australian Consumer Law.
There are a combination of sections in the Food Standards Code that do create a similar regulatory definition of “milk” that exists in the UK. Section 1.1.2-3 defines “milk” as “the mammary secretion of milking animals. Section 1.1.1-13(2) defines “milk” as being a “specified name”, which means the word “milk” can only be used as the name of a product which meets the legal definition of the word “milk”.
So… could the Oatly case happen in Australia? Are plant-based versions of animal food products potentially prohibited from using animal descriptors in the name of their products? The issue is not limited to “milk” (consider “cheese”, “ice-cream”, “fillet”, etc), so the impact would be enormous.
However, there is a key legal difference in Australia: Section 1.1.1-13(4) expressly permits the use of a specific name where “the context makes it clear” that the product is not the named product.
In the UK, Oatly had to argue that “Post Milk Generation” was “descriptive” of the product. The UK Supreme Court considered it “far from clear that the trade mark is describing any characteristic of the contested products”.
However, in Australia, there would seem to be a much stronger argument that “Post Milk Generation” is using the word “milk” in a context that makes it clear that the product itself is not milk.
As a result, traditional animal product descriptors will only be prevented from use by plant-based alternatives if they are misleading and deceptive, in breach of the Australian Consumer Law. Recent FSANZ research indicated that Australian consumers “are generally able to accurately identify the ingredient content of plant-based protein products and dairy alternatives” but did find that use of animal imagery affected consumers perceived ease in doing so. As a result, it is unlikely that clear contextual use of animal descriptors is going to be prevented without more prescriptive government intervention expressly protecting or restricting the use of animal descriptors.
Such government intervention appears unlikely. Following a 2022 Senate Inquiry Report that demanded further protection of animal protein descriptors, there has been a change of government, with action only arriving on 30 January 2026. The Australian Federal Government made the surprising announcement that it would “support” the meat and dairy industries by developing an industry code of practice that would deliver accurate and clear food labelling.[1] What is surprising is that the Government delegated the task of developing that code of conduct to the Alternative Proteins Council, the peak industry body behind plant-based products.
The trade mark position in Australia
Under the Australian Trade Marks Act 1995, a trade mark application may be rejected, opposed, or later removed from the Register if the inherent meaning of the mark is likely to deceive or cause confusion.[2]
The purpose of section 43 is to “prevent the public being deceived or confused as to the nature of the goods offered by reason of a secondary meaning connoted by the mark in question”.[3]
In the case of a trade mark containing the word “milk” it may be that the inclusion of that word could make the trade mark inherently confusing due to consumers having a preconceived notion of what “milk” is. If, for example, consumers thought of “milk” as only being dairy milk from an animal, then trying to register a trade mark containing the word “milk” in relation to non-dairy products could fall foul of section 43.
On the other hand, the Australian Trade Mark Office appears to have implicitly permitted using “milk” in trade marks for non-dairy products by endorsing the following goods descriptors for inclusion in trade mark applications:
- oat milk;
- soy milk;
- rice milk;
- peanut milk;
- almond milk;
- milk of plant origin; and
- milk substitutes.
Indeed, there are at least six Australian registered trade marks containing the words “oat milk” for non-dairy products.
For now, Australian non-dairy food and beverage businesses may not face the same challenges as in the UK regarding use of “milk” in a trade mark for non-dairy products.
That position could change if legislation were amended to restrict dairy terminology, or a successful test case were brought by an industry body such as Dairy Australia.
Should Australian plant-based product manufacturers fear the UK Oatly decision?
From an Australian perspective, the UK decision is notable but not directly transferable.
Unless Australian law is amended to incorporate Codex dairy term protections or to introduce explicit statutory reservations of animal-derived terminology, a UK-style outcome would be unlikely to occur solely through trade mark refusal or regulatory interpretation. In Australia, the key legal question remains whether the overall representation is misleading or deceptive.
That said, the Oatly development illustrates how regulatory approaches can shift in politically sensitive areas such as food labelling. Any movement toward stronger statutory protection of traditional agricultural descriptors in Australia would most likely require legislative reform rather than incremental enforcement action.
This article was written by Jessica Fisher, Matthew Comerford, Charles Fisher and Len Hickey.
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[1] https://minister.agriculture.gov.au/collins/media-releases/improving-plant-based-food-labelling
[2] Ibid s 43.
[3] Pfizer Products Inc v Karam [2006] FCA 1663 at [53].