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Read GFI’s Public Statement on FDA’s Nutrition Innovation Strategy
Variety is the Spice of Life

The American foodscape is getting more varied and festive every year as eaters gravitate towards new foods and foods from across the globe. (Tahini shake, anyone?)

However, the American Food and Drug Administration (FDA) standards of identity—i.e., regulations around what constitutes certain foods—largely cover only “traditional” American foods, made from “traditional” ingredients such as wheat, dairy, and eggs.

FDA is taking a fresh look at its regulatory approach to nutrition and exploring how best to improve standards of identity, labeling claims, and ingredient information. This is part of FDA’s Comprehensive, Multi-Year Nutrition Innovation Strategy, which aims to “both empower consumers with information and facilitate industry innovation toward healthier foods that consumers want.”

They recently opened up a public comment period on this, and you won’t be surprised to learn that we had some thoughts to share! Read our full comment or enjoy the CliffNotes below:

Why We Care

As more Americans become interested in consuming plant-based foods, it is important that the channels of innovation remain clear for new plant-based products. Recently, however, certain special interest groups have attempted to weaponize FDA’s standards of identity to stymy the growth of plant-based milk and other plant-based foods.

Standards of Identity: A Brief History

Standards of identity are regulations defined by FDA about what a product must contain in order to be marketed under a certain name. For example: “Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”

But what about goat milk? Goat milk does not fit the standard of identity of milk, so people use a compound name, which: 
  • Refers to a standardized food name (“milk”);
  • Adds a modifier (“goat”) to connote a similar—yet distinct—product, and;
  • Invokes common sense. 
Many foods we know and love use compound names that either refer to or qualify standardized terms. Take brown rice noodles or zucchini noodles (no wheat!): these foods have not raised any reasonable question about possible “violations” of standards of identity.

This Part Is Really Important

Historically, standards of identity have never been understood to prevent new products from referring to standardized terms in their marketing or labeling. In fact, FDA has repeatedly and explicitly noted that “substitute” food names sometimes need to include the names of the standardized foods they replace. For example:
In some cases it may be necessary to include a standardized name in the name of a substitute food in order to provide the consumer with accurate, descriptive, and fully informative labeling. 
44 Fed. Reg. 3,964, 3,965 (Jan. 19, 1979)
Let’s all go back and re-read that paragraph. Twelve more times.

Consumers understand that goat milk comes from goats. So too is it clear that soymilk comes from soybeans. Including the term “milk” is not only permitted but acknowledged as potentially necessary in FDA policy. No one questioned the clarity of the term “soymilk” until cow’s milk started to lose market share. The outcries against plant-based milk products have nothing to do with protecting consumers and everything to do with protecting entrenched industry interests. It’s just good old fashioned anticompetitive angst. 

Modifiers are Modern

The FDA is looking at modernizing its standards of identity. In the current American marketplace, nonstandardized foods far outnumber standardized foods. It would be unnecessary and impractical for FDA to create a standard-of-identity-style recipe for every new food in the dizzying array of choices now available.

The most efficient approach to modernizing the standards of identity would be clarifying and contextualizing the relationship between standardized and nonstandardized foods: a new food’s name may refer to a standardized term so long as a reasonable consumer would understand that the new food’s name describes a distinct product.

This approach:
  • Encourages continued innovation and consumer choice;
  • Decreases the risk of consumer confusion;
  • Minimizes FDA’s future need to reevaluate standards of identity in light of changing consumer preferences or advances in food technology and nutrition science.
It’s a hat trick! And it’s in keeping with the explicit policy FDA has already laid out. This can’t be stated enough: we’re just advocating that FDA acknowledge and reaffirm its own stated policy.

While We’re on the Subject of Labels

As part of the Nutrition Innovation Strategy, FDA is also reevaluating labeling claims. We think labeling claims are a crucial component of commercial free speech. We also think it’s vital that labeling claims be accurate.

This is especially important when it comes to “non-” or “-free” claims. For instance, some “non-dairy” products do in fact include dairy ingredients. ← THAT (excuse my all caps) is what is truly confusing. When allergens are on the line, claims like this are not only deceitful but dangerous.

Speaking of Ingredients

Finally, FDA is looking at improving the usefulness of ingredient information. This is a great opportunity for FDA to reevaluate its stance on “intervening material” (aka adjectives). As things currently stand, handy modifiers like “fresh” or “non-gmo” are often prohibited in ingredient lists.

Yet, whether a product is made with “fresh” or “dried” basil is useful information for consumers. Modifiers that describe an ingredient’s origin or form should be acceptable in ingredients lists by FDA standards. And while we’re on the subject, we’d like to raise “non-animal” for FDA’s consideration as a useful and clear modifier for describing ingredients like rennet, gelatin, whey protein, or vitamin D, which can have either animal or non-animal origins. Cheers.

TL;DR: This Is an Ode to Adjectives

Language is nimble. In describing both nonstandardized foods and individual ingredients in a product, we should let modifying terms do what they do best: communicate additional information. This continued flexibility is crucial for fostering innovation and the creation of new and healthier foods in our American foodscape.

So we’ll say it again: regulations should serve consumers—not hinder innovation and protect entrenched interests.

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