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Standard of Identity Archive

Protein Politics: Vegetarian Meat Company Gets Booted From Canada

October 31, 2014

by Michele Simon

As a lawyer who has called out plenty of transgressions by unethical food companies, it’s frustrating when the law gets it wrong. That’s exactly what happened to the alternative meat company Field Roast, based in Seattle, but also selling products to our neighbors to the north. That is, until the Canadian government informed Field Roast that the company’s products were mislabeled. Not only that, the products also had to be tested — wait for it — on live animals.

Here is how Field Roast’s blog explains the situation:

The regulations rule that we are making a “simulated meat product” and need to add this language to our labels. The standards for a “simulated meat product” require a Protein Efficiency Ratio (PER) study (conducted using live animals) to evaluate the protein in relation to animal meats.

Let me get this straight: A company making an alternative to animal foods is supposed to test their products on live animals to prove the products are similar to animal foods? The company’s CEO David Lee explains his understandable dismay: “We’re driven to make these foods because we feel very strongly about having compassion for animals.” Hello. The Canadian Food Inspection Agency also wants Field Roast to add chemical supplements and vitamins for fortification, which Lee finds “offensive.” As he should.

grainmeatAnother irony is that the type of protein test results Canada requires does not currently exist because as Field Roast explains, they make a “protein-rich vegetarian sausage entirely from wheat, vegetables and real ingredients”, as opposed to soy or other more recognized proteins.

Apparently a “competitor” made a complaint, and that’s how this whole Kafkaesque episode got started. There is no safety issue here (current products can remain in stores until they run out), only a dumb regulation that sounds suspiciously like it was written by meat lobbyists. For example, a “simulated meat product” that resembles sausage must have “a total protein content of not less than 11 per cent” and  “a fat content of not more than 25 per cent”. Why are these foods being compared to meat for nutrition content? Who else would benefit from such laws other than an industry threatened by competing products?

This situation is a sad example of how an innovative company can get caught up in nonsensical regulations intended to benefit the status quo. This problem will only get worse with more alternative animal products going mainstream. For example, plant-based innovations such as egg-less “Just Mayo” from Hampton Creek arebecoming more popular. Large chains like Walmart, Target, Kroger, Safeway, Costco, and even Dollar Tree are signing deals to carry Just Mayo, according to TIME. With this level of success, innovation and regulation will inevitably collide. And run-ins with the powerful animal food industry will escalate. Right on cue, the American Egg Board launched a PR response to the “huge threat” Hampton Creek poses to Big Egg.

Field Roast says they are trying to work things out with the Canadian government, and let’s hope they do. Meanwhile, an unhappy Field Roast customer in Toronto has started a Change.org petition, in which he is asking (among other things) for his government to eliminate the testing requirement, as well as to allow companies to use common names such as “milk” and “meat” on vegetarian products. The issue of not being able to name alternative animal products what companies would like to is also a huge problem in the United States, and I will soon write more about that.

Yet another reminder that new and growing food companies should be engaging with food lawyers, at every stage of their development, to protect against these sorts of risks.

The Supreme Court’s POM v. Coca-Cola Decision: Complying With FDA Labeling Rules Is No Longer Good Enough

July 7, 2014

by Laura Gaudreau

With a 8-0 decision on June 12, the Supreme Court welcomed another player to question the legality of food and beverage labels: competitors. In Pom Wonderful, LLC v. The Coca-Cola Company, the Court unanimously held that competitors may bring federal Lanham Act claims alleging unfair competition from false or misleading food product labels, even if those labels comply with FDA regulations.

POM Wonderful, a marketer of pomegranate juice products, sued a competitor, Coca-Cola, alleging that the labeling of Coke’s pomegranate blueberry flavored juice blend was deceptive and misleading under §43 of the Lanham Act and hurt POM’s sales. Coke’s product label prominently featured the words “Blueberry Pomegranate” even though the beverage consisted of 99% grape and apple juice, and was only about 0.2% blueberry juice and 0.3% pomegranate juice. Significantly, Coke’s labeling was permissible under the extensive FDA rules governing juice product names.

The issue before the Supreme Court was not the label itself, but the intersection between the Food, Drug, and Cosmetic Act (FDCA) and the Lanham Act.  The FDCA prohibits the misbranding of food through false or misleading labels. Private parties may not bring enforcement suits under the FDCA, so the FDA has nearly exclusive enforcement authority. In contrast, the Lanham Act confers private rights of action, allowing business to sue competitors for unfair competition and false advertising. The Court evaluated whether FDA’s extensive regulation of food labeling under the FDCA precludes private claims challenging food labels under the Lanham Act.

The lower courts sided with Coca-Cola, which claimed the FDCA precludes a Lanham Act claim because the Lanham Act may not be used to preempt or undermine the FDA’s authority. Essentially, Coca-Cola claimed if the juice label satisfied the rules of the FDA, it had the stamp of approval for sale, and could not be challenged through private action via other statutes.

The Supreme Court disagreed with the lower courts, holding that competitors are allowed to bring Lanham Act claims alleging unfair competition from false or misleading food product labels. Justice Kennedy wrote the opinion, noting the two statutes are complementary. The FDCA is concerned primarily with public health and safety, while the Lanham Act protects commercial interests from unfair competition.

This decision potentially opens the door for a high volume of litigation over food labels, and puts substantial power in the hands of competitors. In his decision, Kennedy noted that competitors’ “awareness of unfair competition practices may be far more immediate and accurate than that of agency rule makers and regulators” due to their knowledge of how “consumers rely upon certain sales and marketing strategies.” Likewise, competitors have a financial incentive and possibly greater resources than FDA to challenge deceptive food labeling. Moving forward, food manufacturers must now be concerned not only with whether their labeling complies with FDA regulations, but also with whether it may invite lawsuits from competitors.

FDA Clarifies Honey Labeling Requirements

May 1, 2014

by Gabriella Agostinelli

Americans consume more than 400 million pounds of honey each year, but only about 37% (149 million pounds) of this honey is actually produced in America.  Honey prices also hit a record high last year, costing us around $2.12 per pound. As honey prices are spiking and we increasingly rely on honey imports, American beekeepers and the FDA fear foreign producers are adulterating the product with cheap corn syrup and sugar.

honey-156826_640In response to pressure from the American Beekeeping Federation and several other related trade groups, the FDA has proposed new guidelines for clarifying the meaning of “honey” in food labeling. Under the new guidelines, food companies and other producers adding sweeteners to honey must notify consumers that a product is a “blend.” For example, a product containing mostly honey with added high fructose corn syrup should be labeled “blend of honey and high fructose corn syrup.”

The draft guidance does not address whether honey subjected to ultrafiltration or pollen removal still qualifies as “honey.” For now, the guidelines’ main focus is to prevent adulteration, contamination, or misbranding of the natural sweetener and to promote fairer trade.

While a step forward, the new guidelines may not satisfy honey purists. FDA declined to adopt a formal standard of identity for honey in regulations. And its guidelines are merely non-binding recommendations. They do, however, reflect the agency’s interpretation of the law and positions it is likely to take in enforcement actions. Honey producers already are required by law to identify all extra sweeteners in their products’ ingredient statements. If they identify the product only as “honey” and fail to list all of the ingredients, FDA can take enforcement action against the manufacturer for adulteration and misbranding.

FDA is accepting comments on the proposed guidelines until June 9, 2014.

Aspartame in Milk: Your Dairy is About to Change and You Won’t Even Know It When It Does

March 27, 2013

The dairy industry recently created quite a stir after the public release of its petition to the FDA to amend the definition of milk. Essentially, the industry wishes to change the standard of identity of milk so that a product flavored with a “non-nutritive sweetener” like aspartame can still marketed and labeled as plain ol’ milk. See 78 FR 11791-01; 21 C.F.R. § 131.110 Milk. The dairy industry petition states the amendment would “promote more healthful eating practices” and “reduce childhood obesity” by providing low-cal flavored milk options. Id.

“What’d that guy just say?”

Currently, if the industry wishes to add artificial sweeteners to milk, they have to label it as such, or at least include a nutrient content claim like “reduced sugar” or “low-calorie” to the label. But under the proposal, the industry could completely eliminate these claims from milk labels. As long as an artificial sweetener is included in the listed ingredients, the product may simply be labeled “milk.”

The dairy industry defends this measure by insisting nutrient content claims are unattractive to consumers. It even goes as far as saying that consumers can “more easily identify the overall nutritional value” of artificially-sweetened milk products if “the labels do not include such claims.” id.

Consumer advocacy group SumOfUs.Org has already collected over 111,000 signatures petitioning the petition. Kaytee Riek of SumOfUs.org shared with HuffPost that a major problem with the proposed amendment is that it creates an effect running counter to its stated purpose: “Hyper-sweet additives like aspartame rewire children’s brains so that they always want sugary foods, turning the kids into tiny consumption machines.”

Others are concerned about consumer deception. By not fully disclosing that a milk product may be loaded with chemical sweeteners, the milk industry faces major consumer wariness.

Amid a national decline in milk consumption, it is obvious the industry is doing what it feels best to increase numbers. From a business standpoint, it makes sense for the dairy industry to jump on the artificial sweetener bandwagon.

But let’s be honest folks. Robbing consumers (many of whom dislike or distrust artificial sweeteners) of label notifications like “reduced-sugar” won’t help us. It will anger us. In our very busy lives, the last thing we need is to run to the store for some “milk,” only to come home and discover we got something different than we bargained for. The dairy industry certainly has the right to sell artificially-sweetened milk, but we have just as much right to be fully-informed consumers.

The FDA’s comment period on the dairy industry petition lasts through May 21. If you have thoughts you would like to share, learn how to make your own submission here.

– By Gabriella Agostinelli

How Olive Oil Producers Are Protecting Their Products from Food Fraud

April 9, 2012

Via Huffington Post, the Journal of Food Science reported in its April issue that olive oil is one of the most adulterated and diluted agricultural products on the market. No surprises there – olive oil fraud is one of my favorite topics. It was also the main theme of a pretty awesome book last year, Extra Virginity: The Sublime and Scandalous World of Olive Oil, by Tom Mueller.

I perceive that there are two reasons for the increasing media attention to fraud in the olive oil industry:

1. Food provenance is increasingly important to consumers. (See “Pink Slime”)

2. Domestic production is ratcheting-up to become a dominant force in thew world olive oil market.

Also in the news on Friday, Pompeian Olive Oil became the first olive oil importer to use the new USDA Quality Monitoring Service logo on its extra virgin olive oil products. Much like the “USDA Organic” seal, the new rules will create a special mark that may be applied to qualified olive oil products.

This has been the second time in recent history that the USDA has tweaked the standards for olive oil in an attempt to prevent fraud. In October of 2010, the USDA introduced new standards for classifying grades of olive oils. If I can overcome my reflexive disdain for new regulation, stricter quality parameters are a good thing. For the US olive oil industry to compete with cheaper imports from say, North Africa, they will have to do so on the basis of quality, purity, and freshness. Federal standards will allow domestic producers to define the “other”.

My one criticism is purely practical. It will be tough to build a brand for the new certification mark as an indicator of quality  if no one is marketing the symbol itself. So far no coordinated marketing campaign has been launched to tell us how the symbol represents useful information to the consumer. It took me a while just to Google around to figure out what this mark even looks like.

There is no point to using symbols to sell product unless someone takes the time and money to explain its utility to the consumer, which is how brands are made. The USDA won’t spill the dough to market this seal of approval. If an olive oil business went through the expense, they would just create a hold-out problem for themselves.  Though I hope to see this symbol tell consumers the difference between the real deal and the biodiesel, I’m skeptical.

Americans Fed Beetles, NPR Scooped by Cracked.com

April 2, 2012

Under current federal food labeling laws, food processors can feed people ground-up beetles without having to tell them about it. Actually, they are required to disclose it on their labels, but they have to call it something that sounds innocuous.

You’ll often see “carmine” or “cochineal” on an ingredient panel, which are interchangeable names for a purple-looking dye made by processing the guts of Dactylopius coccus, a scaled cactus-parasite native to Mexico and South America. As reported by NPR last Friday, some conscientious Starbucks customers found out it was being added into their overpriced, fair trade fraps and are now understandably disgusted concerned.

Cracked.com did a substantially more revolting bit about cochineal in the food system four years ago, Number 3 on this list:

“Carmine is made, literally, from ground-up cochineal insects, which is just a more harrowing way of saying mashed red beetles. Because you’re dying to know more, the insects are killed by exposure to heat or immersion in hot water and then dried. Because the abdomen region that houses the fertilized eggs contains the most carmine, it is separated from the rest of the body, ground into a powder and cooked at high temperatures to extract the maximum amount of color.

Then, it’s added to that yogurt you ate this morning while lording your health consciousness over the guy in the cubicle next to you who had an Egg McMuffin.”

According to the USDA, using ground beetle-abdomen is perfectly legit, so long as the extracted beetle-juice is pasteurized. 21 CFR 73.100. Great, so eating it won’t kill us, but… it’s still beetles.

Federal regulation mandates that food manufacturers label this additive as either “cochineal” or “carmine” on the product ingredient panel. These are the only acceptable words that processors are allowed to use. In other words, if it goes into your product, you must use the designer name of the coloring instead of something accurate but unpalatable like ‘beetle-dust’. It is almost as if federal regulations require food processors to be disingenuous. Thanks to this sleight of hand, unless you were an entomologist, you’d probably breeze right over the ingredient label and never know you’re about to eat beetles. If we had a truly transparent food system, our own laws would force processors to call it “dried and pulverized beetle coloring” instead of some soft trade name. But of course that would make us think twice about eating that blueberry yogurt.

Food law will mandate sanitation (by mandating pasteurization) without ever addressing the issue of whether we should eat some things in the first place.

The Definition of Butter

September 20, 2011

The WSJ has a review of European style butter brands now available for sale in the US. The article provides no reason for the relative creaminess of domestic vs. imported butter. A matter of culture perhaps? Nope. The minimum rate for butterfat content in a product labeled “butter” is set by federal law. 21 USCS 321a;

“…”butter” shall be understood to mean the food product usually known as butter, and which is made exclusively from milk or cream, or both, with or without common salt, and with or without additional coloring matter, and containing not less than 80 per centum by weight of milk fat, all tolerances having been allowed for.”

Fat is the most valuable part of milk. The statute is ostensibly intended to keep butter producers from dithering down the fat percentage and substituting cheaper fillers in its place. So under the law, 1/5 of each stick of butter in your fridge right now is not butter at all. It is waxy milk solids, whey, or water (essentially junk). “Butter” means you are being kinda robbed. How’s that for consumer protection?

Keep in mind that this standard of identity has been set by Congress. It can therefore only be changed by Congress. That makes it much harder to change the 80% minimum, up or down. King Corn may be powerful enough to solicit the FDA for a regulatory fiat to change the definition of sugar, but Lord Butter will never budge the whole of Congress. We are stuck with a greasy, inferior product. You win, Europe. Take the rest of the day off!

For my local readers, you can opt-out and buy from Goodale Farms, Long Island’s only dairy. It’s insanely good stuff, and there is absolutely no filler.