Terms such as ‘meatless sausage’ or ‘plant-based burger’ are too generic and should be replaced by more specific wording such as ‘chickpea sausage’ or ‘soy-based burger,’ says the FDA.
In new draft guidance, which covers plant-based alternatives to eggs, seafood, poultry, meat, and dairy products, but excludes plant-based milks (which are covered in draft guidance issued in 2023), the FDA says it is comfortable with the use of terms that have historically described animal-based foods such as ‘meatballs,’ ‘burgers,’ and ‘yogurt’ on plant-based product labels.
However, it does not like commonly used descriptors such as ‘plant-based burger,’ ‘meatless sausage’ or ‘plant-based cream cheese’ used as statements of identity, and suggests brands instead specify the key ingredients they are using such as ‘soy-based burger’ or ‘soy & wheat jerky’ or ‘Cashew cream cheese.’
“We recommend not using only ‘vegan,’ ‘meat-free’ or ‘animal-free’ terms as the name or statement of identity of the food, as it does not describe the nature of the plant source and therefore does not distinguish the product from other types of plant-based alternative foods.
If the labeling of a plant-based alternative food includes the name of a standardized food as part of the statement of identity, the name of the standardized food should be qualified by the type of plant source [eg. soy, peas, almonds].
“Conveying the plant source(s) in the naming of the product may help consumers understand that the composition of the product is different and prompt consumers to review the Nutrition Facts label. Providing information about the primary ingredients in a plant-based food (eg. ‘cashew cheese spread’) may also… prompt consumers with food allergies to review the ingredient declaration…”
Where multiple plant-based ingredients are used, firms should specify the top ones, adds the FDA: “We recommend that the predominant plant source by weight be stated first in the name or statement of identity, for example, ‘Chia and Flax Seed Egg-less Scramble’ for a product that contains a blend of chia and flax seeds, with chia seeds predominating.”
Citing existing regulations, the statement of identity (eg. ‘Cashew spreadable cheese’) must be in bold type on the principal display panel in a type size “reasonably related to the most prominent printed matter on the principal display panel,” says the FDA. “Generally, we consider a prominent print or type for the statement of identify to be at least half the size of the largest print on the label.”
PBFA: Guidance is ‘unfairly burdensome’
The guidance has been welcomed by plant-based brands to the extent that it doesn’t seek to block them from using dairy or meat terms altogether. However, legal experts told AgFunderNews it wasn’t clear why consumers would be confused by a term such as ‘plant-based burger’ given that a quick glance at the ingredients list would explain what’s in it (eg. soy, peas etc).
Marjorie Mulhall, senior policy director at trade association the Plant Based Foods Association (PBFA) said she welcomed the FDA’s “acknowledgement of increasing demand for plant-based foods and that consumers are purchasing these products for various reasons, including allergies, environmental concerns, and taste preferences.
“However, we see suggestions in this proposal that are unfairly burdensome to plant-based food companies and treat plant-based products differently than any other foods in the market. FDA has not provided a reason as to why this guidance is necessary. Plant sources have never been required or even common for most of these products and for an increasing number of products made from numerous plant-based ingredients that would result in a laundry list of plant sources in the product name.”
She added: “These recommendations are considered guidance versus being a formal FDA rule. However, agency guidance of this nature will likely lead to frivolous lawsuits against plant-based manufacturers that put further burden on our industry.”
GFI: ‘Unnecessary burdens for plant-based producers ‘
Madeline Cohen, senior regulatory attorney at the Good Food Institute (GFI), a nonprofit that advocates for plant-based alternatives to animal foods, said the GFI “applauds FDA for explicitly confirming that plant-based product names can include the names of animal-derived foods, including standardized terms such as ‘yogurt’ and ‘cream cheese,’ so long as the resulting labels are not misleading.”
However, the proposed guidance “could be improved by dropping the request that plant-based producers include a list of plant sources in their product names,” information that is “readily available to consumers on the ingredients disclosure FDA already requires,” said Cohen.
“The recommendations could create unnecessary burdens for plant-based producers and reduce consumer choice.”
Attorney: ‘Guidance is anti-competitive’
Rebecca Cross, founding partner at law firm Greenfare Law, told us: “Like its guidance on plant-based milk alternatives, this guidance is anti-competitive and singles out the plant-based food industry in an apparent effort to appease the dairy and meat industries. The FDA says that consumers should be able to determine the plant source of a plant-based product from that product’s name, but why should plant-based products have this unique requirement?
“Gluten-free breads or noodles, for example, have no obligation to include their non-wheat sources in their product names. Consumers look to ingredient lists for this information.”
‘I am not sure why FDA believes this is necessary’
Nigel Barrella at Barrella Law added: “I am not sure why FDA believes it is necessary [to spell out the specific type of plants in the statement of identity] as an across-the-board matter for this product category but not others. Sometimes it may make sense to include this information when there are several similar alternatives to choose with simple ingredients, like soy yogurt vs. almond yogurt. But it certainly would lead to a messy label when you have a blend of plant sources.
“If companies choose to follow the guidance where it is messy to do so, I would expect the prominence of brand names or fanciful descriptors on labels to grow, with the statement of identity having much less prominence. No one thinks of Cheerios as ‘toasted whole grain oat cereal,’ or Velveeta as ‘pasteurized recipe cheese product.’ But if you look at the bottom of the label, you can see that as the statement of identity.”
While food regs require the statement of identity to be listed in bold type prominently on the label, he acknowledged, this is not always followed. “Next time you’re in a supermarket, look for some examples to get an idea of how aggressively that’s enforced…”
As for opportunistic lawsuits citing the guidance, he said, “It is very hard for me to imagine a cause of action based on a clearly labeled ‘plant-based’ product, where a consumer wanted to know the plant sources [eg. soy, wheat, chickpeas etc] but couldn’t be bothered to read the ingredients [list]. But maybe I am not as creative as some of the plaintiffs’ lawyers.”
Just Mayo and Muscle Milk
Other legal experts we spoke to also noted that the FDA permitted Eat Just’s egg-free ‘Just Mayo’ to keep its name as long as it included disclosures that the product was ‘egg-free’ and included ‘spread & dressing’ in the statement of identity, to differentiate it from standardized mayo. Similarly, Muscle Milk was to be labeled as a ‘non-dairy protein shake’ to differentiate it from milk, but no source disclosure was required.
Better Meat Co: Guidance could ‘inadvertently stigmatize plant-based products’
In comments submitted to the agency as soon as the guidance was published, Paul Shapiro, CEO at mycoprotein startup The Better Meat Co, warned that the guidance “could inadvertently stigmatize plant-based products by implying they require special labeling to ensure transparency.”
If the FDA moves forward with this recommendation, it risks setting a precedent that is “neither equitable nor practical,” claimed Shapiro, noting that there are numerous foods on the market today that are not compelled to disclose their primary ingredient on the front of pack, from Pepperoni (which could be made from a variety of meats) to breakfast cereal, gluten-free waffles or vegetable chips.
What is the legal status of draft guidance documents?
Draft guidance documents, which are first released for public comment before they are finalized, are not legally binding.
However, it can be risky to simply ignore them as they are frequently cited by plaintiff’s attorneys in false advertising lawsuits, most strikingly in the case of ‘evaporated cane juice,’ where draft guidance advising firms not to use the term was cited in a tidal wave of civil litigation.
So how should brands respond?
Right now, the document is only in draft form, and firms are invited to submit comments by May 7, said Barrella. “Since this is a draft document published for comment, I wouldn’t recommend any producer change their labeling based on it. And I don’t expect many firms will act on it yet, in terms of changing labels. But it’s worth thinking about how and whether to follow the guidance, if it becomes final.”
Rebecca Cross at Greenfare Law added: “Even though the [finalized version of the] guidance would be non-binding, it puts plant-based companies at risk for consumer class action litigation citing the guidance as evidence that the ‘plant based’ naming is misleading. I can’t imagine such lawsuits would succeed in light of existing precedent, but the cost of defense could put small plant-based companies out of business.”
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