VEGAN LABELING – WHAT CAN BE CALLED MILK OR MEAT?
By Emilio Gironda, VRG’s Volunteer Coordinator
The availability of food made and marketed expressly for vegans in the last few years has skyrocketed. The fact that one can pull up to a Burger King and order a plant-based burger with fries would have been unthinkable 20 years ago. But easy availability has its downside – particularly when it comes to cross contamination. Were the burgers cooked on a separate grill? Were they manufactured in a factory that provided separate processing? Is the packaging cruelty-free? Where do these pickles come from? The same types of questions that apply to eating out apply equally to shopping at the market. How many times have you blocked the isle in your friendly neighborhood Safeway trying to read the microscopic ingredients on a frozen vegan pizza? Or asked an exasperated server at your favorite local haunt if the vegan soup has a fish base, or if the chipotle ranch dressing is made with Vegenaise? For me at least, this brings to the fore the vegan elephant in the room. Once we have committed ourselves to this ethical, compassionate life, how far do we go up, or down, the food chain to ensure that the food we eat, and that we feed our loved ones, is truly vegan? How certain can we ever be that the food we eat is vegan?
The Food and Drug Administration (FDA) is responsible for assuring that food sold in the U.S. is safe, wholesome and properly labeled. Federal Food, Drug, and Cosmetic Act and the Fair Packaging and Labeling Act (1) are the Federal laws governing food products under the FDA’s jurisdiction. But the question “is it vegan?” has so far not come to a top priority. Generally the FDA does not require manufacturers to disclose specific food content if it is below a set minimum and the ingredient does not have a health, functionality, or safety impact – so trace amounts of animal related ingredients do not have to be disclosed on labels. This exception also covers a variety of “unintended” ingredients it’s best not to contemplate. However The Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA) (2) does provide some help to vegans. This Act requires food manufacturers to label food products that contain ingredients from a specific list of food allergens. This list includes any flavorings, colorings, or incidental additives. Of note for vegans and vegetarians the presence of milk, eggs, crustacean shellfish, and fish must be disclosed. So at least we as consumers can rely, with a reasonable degree of certainly, on the presence or absence of these particular animal sourced ingredients, but no provision under this Act is made for ingredients that may be derived from other animal sources.
WHAT CAN BE CALLED MILK OR MEAT?
Plant milk producers have scored a key victory in the 2018 US Court of Appeals case Painter v. Blue Diamond Growers (3). In a nutshell the Court ruled that calling almond milk “milk” is not deceptive. At stake is what the FDA calls “standards of identity (4),” legally binding definitions of products to ensure consumers know what they’re buying. The dairy industry has complained for years that the FDA hasn’t policed the definition of “milk” and has allowed products made from soy, almonds, cashews, rice, hemp, and oats to fill shelves in the dairy aisle. In this case, the dairy industry alleges that these products shouldn’t be allowed to use the term milk because they are nutritionally inferior. But the court said the complaint does not plausibly allege that a reasonable consumer would be deceived into believing that Blue Diamond’s almond milk products are nutritionally equivalent to dairy milk based on their package labels and advertising.
The Real Marketing Edible Artificials Truthfully (MEAT) Act (5) seeks to require plant-based meat packaging to prominently feature the word “imitation,” along with a statement that clearly indicates the product is not derived from or does not contain meat. This is strongly backed by traditional meat producers and it was in committee as of this writing. (Though if it passed, depending on the regulations, we still may not know if an items is vegan.)
Also of some relevance is an agreement between the FDA and the USDA (U.S. Department of Agriculture) regarding oversight of human food produced using animal cell technology (6). Could this be a step in the right direction or is it just one step closer to Soylent Green (7)? For you old timers out there, the movie takes place in 2022. See VRG’s related testimony here: https://www.vrg.org/blog/2021/03/10/the-vegetarian-resource-group-submitted-this-testimony-to-the-fda-concerning-labeling-of-seafood-produced-from-cultured-seafood-cells/
NEW YORK CASES
A New York case involving an alleged violation of New York’s Deceptive Acts or Practices Law is somewhat helpful, if only for the result and not for any precedent it may establish (8). In Borenkoff v Buffalo Wild Wings Inc et al, 2018 U.S. District Court, Southern District of New York (9) plaintiff alleged that defendants use beef tallow to fry non-meat food items like mozzarella sticks and French fries, whereas the “industry standard” is to use non-beef cooking oil to fry such items and that a reasonable consumer would assume that non-meat oil would be used for non-meat foods. The court dismissed the complaint, deciding that the plaintiff failed to state any “actual injuries” over and above the monetary cost of the purchase. It remains subject to conjecture what the Court would have decided if the case was differently pled.
The New York State Department of Agriculture & Markets generally regulates food manufactured and packaged for retail sale in New York and local Departments of Health, mostly at the county level, regulate restaurants and menu labeling. I can say from years of experience that there is often a huge disconnect between State, County and Municipality rules and regulations and their implementation. That being said, there is scant New York State Law on this front for them to interpret or implement anyway.
One bright light on the local level however is the New York City Bar Association’s Animal Law Committee. They have championed numerous anti-animal cruelty initiatives over the years (10). As an apropos example, they issued a report on the use of the names of dairy foods in the labeling of plant-based products. They argued that “the standard of identity for milk (limiting it to the lacteal secretions of cows) was established to address the rampant adulteration of dairy milk products in the early 20th century that harmed consumers who wished to purchase cows’ milk, not to preclude or hinder the marketing of truthfully labeled new variations or new foods” (11).
As far as any additional, specific guidance, there is this statement from the New York State Department of Agriculture and Markets about “Imitation Foods” which may by extension apply to vegan food: “If any food product is an imitation of another, and is nutritionally inferior to that product, it must be labeled “Imitation _____,” with the space being filled in with the name of the food imitated, and with the word “imitation” in type of uniform size and prominence as used for the name of the food.” (12) Query what “nutritionally inferior” means in this context. However, as far as I can tell, there are no New York State regulations specific to the use of the term “vegan” in food labeling. This being the case, are there any other cases or statutes that address the government’s role in the regulation of food that may help us in our quest? The answer lies, perhaps, in the regulation of kosher food.
Outside of Israel, New York has the largest population of kosher consumers with more than 135,000 products available on the market shelves (13). Possibly as a consequence of this, New York State has had one form of kosher labeling law or another since 1915 – most recently the Kosher Law Protection Act of 2004 (14). Basically the act requires those who market their food as kosher to label it kosher and to identify the individual certifying the food by filing with the New York State Department of Agriculture. The Act has been challenged as unconstitutional in Commack Self-Service Kosher Meats, Inc. v. Hooker 680 F.3d 194 (2d Cir. 2012) (15) where the court, applying the Lemon test from Lemon v. Kurtzman, 403 U.S. 602 (1971) (16), rejected plaintiff’s contentions and decided that the act is constitutional. Even though it’s a small victory and may be more related to religious questions, it’s one that could have an impact on vegan food labeling.
For now, we as vegans and vegetarians need to remain vigilant. I guess I’ll see you at the supermarket. I’ll be the one studying the ingredients on a bag of chocolate covered pretzels. Happy “hunting.”
References
https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title15-chapter39&edition=prelim
(5) https://www.congress.gov/bill/116th-congress/house-bill/4881/text
(7) https://en.wikipedia.org/wiki/Soylent_Green
(8) https://codes.findlaw.com/ny/general-business-law/gbs-sect-349.html
(9) https://casetext.com/case/borenkoff-v-buffalo-wild-wings-inc
(10) https://supreme.justia.com/cases/federal/us/403/602/
(11) https://www.nycbar.org/issue-policy/issue/issues/Animal//////1/10
(12) https://codes.findlaw.com/ny/agriculture-and-markets-law/agm-sect
(13) https://www.courtlistener.com/opinion/799604/commack-self-service-kosher-meats-inc-v-hooker/
(15) http://www.blslibrary.com/2012/06/12/kosher-law-protection-act/
(17) https://asakeisar.com/en/vegan-kosher-certification/
This is not legal advice, for which you should consult your own legal professional. Emilio Gironda practiced law for 35 years. He has come to the vegan table late in his journey of self discovery and evolution. He believes that all living beings deserve our love and compassion and that to live any other way is to fill our lives with dust.
For more labeling information, see:
https://www.vrg.org/journal/vj2015issue4/2015_issue4_GelatinCarmine.php
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The contents of this posting, our website, and our other publications, including Vegetarian Journal, are not intended to provide personal medical or legal advice. Medical advice should be obtained from a qualified health professional. We often depend on product and ingredient information from company statements. It is impossible to be 100% sure about a statement, info can change, people have different views, and mistakes can be made. Please use your best judgment about whether a product is suitable for you. To be sure, do further research or confirmation on your own.
