Don’t Milk It: Oat milk is not milk according to UK’s highest court

Plant-based foods and drinks have gained significant popularity in recent years as alternatives to dairy-based products. The question of how these non-dairy products can be marketed continues to arise in the court room, where a recent decision in the United Kingdom’s Supreme Court has highlighted challenges relating to the ability to use the term “milk” in the UK in relation to non-dairy products.

This article unpacks the recent UK decision Dairy UK Ltd v Oatly AB [2026] UKSC 4, and looks at what this could mean when applied to the current position in New Zealand.

Key takeaways

In New Zealand, plant‑based alternatives can generally be marketed using terms such as “oat milk” or “soy milk”, provided the labelling and branding clearly indicate the non‑dairy nature of the product and does not otherwise mislead consumers.
However, the UK Supreme Court decision signals that overseas regulators may take a stricter approach to dairy terminology, including where “milk” is used as part of a slogan or brand rather than a product name.
Cross-border businesses should be mindful of different regulatory obligations for marketing and packaging of products.

Background

Oatly AB (Oatly), a Swedish company that manufactures and sells oat-based food and drink products, successfully registered the trade mark “POST MILK GENERATION” in the UK. However, Dairy UK Ltd (Dairy), the trade association for the UK dairy industry, sought to invalidate Oatly’s trade mark registration.

After a series of decisions and appeals, the case made its way (back) on appeal to the UK’s Supreme Court.

The appeal concerned the interpretation of an EU Regulation that regulates the use of dairy terms such as "milk", "cheese" and "yogurt" in relation to the marketing of agricultural products. The EU Regulation provides that the "designations" of "milk" and "milk products" may not be used for any product other than those specified, which include cream, cheese and yogurt. The UK Trade Marks Act 1994 provides that a trade mark shall not be registered if it is in violation of any law in the UK, with the EU Regulation being relevant in the case of this product.

Oatly argued that "designation" means the name of a product, and that POST MILK GENERATION was not a name, but merely a brand slogan. Oatly further argued that no one reading the packaging of its product would think they were buying a bottle of dairy milk. The Supreme Court disagreed with Oatly. The Supreme Court held that the term "designation", in its natural meaning and read in the context of the regulations, refers to the use in respect of a food or drink rather than the actual name of it.

Additionally, Oatly argued that POST MILK GENERATION has been “clearly used to describe a characteristic quality of the product”, namely that the product is milk-free. The Supreme Court disagreed again, this time on the basis that the trade mark is far from “clearly” describing any characteristic of the goods, as the mark could have multiple meanings such as describing a younger generation of consumers who consume less milk.

Oatly’s trade mark registration was therefore invalid in relation to oat-based food and drink because it was contrary to the EU Regulation and the appeal was dismissed.

The New Zealand position

Although the Oatly decision does not apply directly in New Zealand, the underlying issue of whether plant-based food and drink businesses can use dairy terms such as "milk" in their branding has been a subject of debate over the years.

New Zealand has its own framework of rules on food labelling and the use of reserved terms, predominantly under the Food Act 2014 and the Australia New Zealand Food Standards Code (the Code). Standard 1.1.1-13(1) of the Code provides that when a food is sold using a prescribed name (such as “milk” or “bread”) it must meet certain requirements, including satisfying the applicable definition in the Code. In this context, Standard 2.5.1 of the Code defines "milk" as the mammary secretion of a milking animal. However, Standard 1.1.1-13(4) of the Code provides an “exception” to this naming requirement. This exception applies where the context makes it clear that the intention is not to sell the food as the food that is defined in the Code. For example, the Code states that the use of the term “ginger beer” does not need to meet the definition of “beer”, for the purposes of the Code, where the name is used in marketing or selling a soft drink.

Applying the Code in the context of plant‑based alternatives, where the use of the term “milk” is qualified by a clear description such as soy or oat, the relevant marketing or labelling of the product should have the benefit of the exception and the product should not need to meet the definition of “milk” under the Code. In fact, in relation to soy milk and soy ice cream, the Code clarifies that the use of the name “soy” provides sufficient indication that the intention is not to sell the product as “milk”.

In addition to the food regulation through the Code, the Fair Trading Act 1993 generally prohibits misleading conduct in trade, including in relation to the nature or characteristics of goods, and the Trade Marks Act 2002 prohibits the registration of trade marks that are confusing or deceptive or are contrary to law. However, these restrictions only apply where the use of a trade mark, product description, labelling or branding would be, or would likely be, confusing, misleading or deceptive, or contrary to the laws of New Zealand. As a result, clearly described plant‑based products such as soy milk and oat milk are generally permitted, while vague or ambiguous labelling may still attract scrutiny under these Acts.

The debate continues

Although the current framework in New Zealand is relatively settled, the debate continues, especially across the ditch. Food Standards Australia New Zealand (FSANZ) recently conducted consumer research which found consumers were generally able to confidently identify plant-based drinks from those with dairy.

Further, the Australian Government has announced an intention to “strengthen existing voluntary labelling guidelines” by working with the Alternative Proteins Council, which represents the alternative proteins sector in both Australia and New Zealand, to develop a new industry code of practice. The code of practice aims to improve consistency and transparency in plant‑based food labelling by limiting animal imagery and meat‑specific terminology, requiring clearer plant‑based qualifiers, and introducing a formal complaints mechanism.

While this initiative currently only appears to be for Australia, it will be interesting to watch whether New Zealand adopts a similar approach over time.

The key message

While New Zealand courts and regulators have not yet had to grapple with a case quite like Dairy UK v Oatly, the UK Supreme Court's reasoning offers some useful guidance and a helpful opportunity to review the position in New Zealand:

Regulators and courts are likely to look at the overall use of the term in connection with the product, including slogans, not merely whether it is used as the product's name;
While the debate of whether “milk” should be restricted to animal milk continues globally, for now, the position in New Zealand remains that using this description for plant products is generally okay where the context makes it clear that the intention is not to sell “milk” as a mammalian product, and the use of the term is not otherwise misleading;
That said, New Zealand businesses exporting food and beverage products for sale overseas should be mindful about differing regulations in other territories.