As more companies enter the alternative protein marketplace, and more government leaders debate what should be legally considered meat, dairy and egg products, businesses need to be careful with their product names and label and advertising claims.
“It’s hard to think of anything more important than what you’re going to call the product. However, your freedom of invention is not limitless,” says Ricardo Carvajal,a food regulatory lawyer and director at the law firm Hyman, Phelps & McNamara, P.C. “The name must accurately identify or describe the basic nature of the food or its characterizing properties or ingredients. And this can be trickier than it sounds. What’s the composition of the product? What are its essential attributes? What’s it made from? How’s it made?”
Carvajal spoke on labeling and advertising at the Fermentation-Enabled Alternative Protein Innovation conference. Regulations for the young alternative protein industry are broad and confusing, he pointed out. Alternative foods have not been given a “standard of identity” by the FDA – the legal definition that dictates the composition of a food product, how it’s made and its name. Without formal federal direction regarding alternative foods, legislators across the country are making their own rules.
Governing Alt Food
A majority of states have considered regulating the labeling of alternative food products. So far, 32 states have proposed guidelines, and 15 of those have enacted legislation.
“It’s a bit of a smorgasbord in terms of the content of these state laws,” Carvajal adds. “This is going to remain a difficult issue for companies to navigate. If there’s a standard of identity, a federal law, that’s going to take precedence over state laws. But what we’re seeing is an absence of a federal law or a regulation to cover some of these issues or some of these product categories. That’s leaving the door open for the conventional industry to push for laws at the state level.”
This year the USDA plans to issue guidelines for labeling claims on food products made using animal cell culture technology, which will establish nomenclature and labeling requirements for those alternative proteins. The USDA also plans to provide direction on the labeling of plant-based milk alternatives by June 2022.
Carvajal points to the “soy milk saga” as a cautionary example. Milk is a formal FDA standard of identity, defined as ““the lacteal secretion, practically free of colostrum, obtained by the complete milking of one or more healthy cows.” Plant-based milk brands have been sent warning letters by the FDA, arguing a plant product is misbranded as milk. The soy industry has petitioned the FDA to establish soy milk as a common name, but the dairy industry has lobbied aggressively to enforce preserving traditional dairy product names.
Those FDA warning letters can be a big blow to a company — they’re published on the FDA website, so potential investors and customers can review. Letters are monitored by plaintiff’s lawyers, too. These attorneys specialize in suing companies on behalf of consumers, alleging consumers were misled by false claims. “Those actions can be quite expensive to defend,” Carvajal notes.
“Selecting or devising an appropriate name for a product can be a tricky exercise that requires simultaneous consideration of a number of factors,” he says. “The FDA does not view a name as a marketing opportunity.”
Types of Labeling & Advertising Claims
Though there are no formal legal definitions of alternative foods, alt brands do need to follow FDA, FTC and USDA labeling rules. These regulations include:
- Nutrient content (FDA oversight). A nutrient must have an established daily value to make a particular claim. For example, “Excellent source of protein” on a label requires the product to provide 20% of the recommended daily value of protein, while “Good source of protein” requires only 10-19%.
- Health (FDA oversight). This is a tightly-regulated area, Claims that imply a cause-and-effect relationship between a specific nutrient and a disease or health condition require scientific studies on humans. This research can take years to receive FDA approval.
- Structure/function (FDA/FTC oversight). This is the most popular type of claim on a food label because it doesn’t require review or approval in advance of going to market. Examples here are “Protein helps build strong muscles” and “Promotes a healthy immune system.” Still, a structure/function claim must be substantiated.
- Environmental benefit (FTC oversight). Green claims need to comply with the FTC’s Green Guides, which give guidance on environmental marketing claims. Carvajal advises brands to avoid using terms like “eco-friendly” on a product label or in advertising because “they’re impossible to substantiate.” There are a variety of environmental certifications and seals that are better options for a product label.
- Organic (USDA oversight). Organic food must meet USDA standards through the National Organic Program (NOP). Violations result in costly penalties.
- Natural (no official definition). Natural does not have a legal definition — the FDA permits use of “natural” if the food does not contain anything artificial or synthetic. Meanwhile, the USDA views natural as a minimally processed product with no artificial ingredients, with the determination based on the specific product c rather than a category. Carvajal says a natural claim is a “very high risk” for a brand because “the absence of a legally binding definition has enabled plaintiffs lawyers in a wide range of circumstances.”
“You should assume that virtually any claim that you use on labeling or advertising will be subject to regulation of some kind,” he adds. “The requirements that apply might be general in nature or highly specific. So to protect your business, you should have a formal internal review process to ensure that you properly vet all your claims.”