{"id":17386,"date":"2021-05-14T09:00:35","date_gmt":"2021-05-14T13:00:35","guid":{"rendered":"https:\/\/www.vrg.org\/blog\/?p=17386"},"modified":"2021-04-29T12:17:20","modified_gmt":"2021-04-29T16:17:20","slug":"vegan-labeling-what-can-be-called-milk-or-meat","status":"publish","type":"post","link":"https:\/\/www.vrg.org\/blog\/2021\/05\/14\/vegan-labeling-what-can-be-called-milk-or-meat\/","title":{"rendered":"VEGAN LABELING \u2013 WHAT CAN BE CALLED MILK OR MEAT?"},"content":{"rendered":"\n
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By Emilio Gironda, VRG\u2019s Volunteer Coordinator<\/p>\n\n\n\n

The\navailability of food made and marketed expressly for vegans in the last few\nyears has skyrocketed. The fact that one can pull up to a Burger King and order\na plant-based burger with fries would have been unthinkable 20 years ago. But\neasy availability has its downside \u2013 particularly when it comes to cross\ncontamination. Were the burgers cooked on a separate grill? Were they\nmanufactured in a factory that provided separate processing? Is the packaging\ncruelty-free? Where do these pickles come from? The same types of questions\nthat apply to eating out apply equally to shopping at the market. How many\ntimes have you blocked the isle in your friendly neighborhood Safeway trying to\nread the microscopic ingredients on a frozen vegan pizza? Or asked an\nexasperated server at your favorite local haunt if the vegan soup has a fish\nbase, or if the chipotle ranch dressing is made with Vegenaise? For me at\nleast, this brings to the fore the vegan elephant in the room. Once we have\ncommitted ourselves to this ethical, compassionate life, how far do we go up,\nor down, the food chain to ensure that the food we eat, and that we feed our\nloved ones, is truly vegan? How certain can we ever be that the food we eat is\nvegan?  <\/p>\n\n\n\n

     The Food and Drug Administration (FDA) is\nresponsible for assuring that food sold in the U.S. is safe, wholesome and\nproperly labeled. Federal Food, Drug, and Cosmetic Act and the Fair Packaging\nand Labeling Act (1) are the Federal laws governing food products under the\nFDA\u2019s jurisdiction. But the question \u201cis it vegan?\u201d has so far not come to a\ntop priority. Generally the FDA does not require manufacturers to disclose\nspecific food content if it is below a set minimum and the ingredient does not\nhave a health, functionality, or safety impact \u2013 so trace amounts of animal\nrelated ingredients do not have to be disclosed on labels. This exception also\ncovers a variety of \u201cunintended\u201d ingredients it\u2019s best not to contemplate.\nHowever The Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA)\n(2) does provide some help to vegans. This Act requires food manufacturers to\nlabel food products that contain ingredients from a specific list of food allergens.\nThis list includes any flavorings, colorings, or incidental additives. Of note\nfor vegans and vegetarians the presence of milk, eggs, crustacean shellfish,\nand fish must be disclosed. So at least we as consumers can rely, with a\nreasonable degree of certainly, on the presence or absence of these particular\nanimal sourced ingredients, but no provision under this Act is made for\ningredients that may be derived from other animal sources.  <\/p>\n\n\n\n

WHAT\nCAN BE CALLED MILK OR MEAT?<\/p>\n\n\n\n

Plant\nmilk producers have scored a key victory in the 2018 US Court of Appeals case\nPainter v. Blue Diamond Growers (3). In a nutshell the Court ruled that calling\nalmond milk \u201cmilk\u201d is not deceptive. At stake is what the FDA calls \u201cstandards\nof identity (4),\u201d legally binding definitions of products to ensure consumers\nknow what they\u2019re buying. The dairy industry has complained for years that the\nFDA hasn\u2019t policed the definition of \u201cmilk\u201d and has allowed products made from\nsoy, almonds, cashews, rice, hemp, and oats to fill shelves in the dairy aisle.\nIn this case, the dairy industry alleges that these products shouldn\u2019t be\nallowed to use the term milk because they are nutritionally inferior. But the\ncourt said the complaint does not plausibly allege that a reasonable consumer\nwould be deceived into believing that Blue Diamond\u2019s almond milk products are\nnutritionally equivalent to dairy milk based on their package labels and\nadvertising. <\/p>\n\n\n\n

     The Real Marketing Edible Artificials\nTruthfully (MEAT) Act (5) seeks to require plant-based meat packaging to\nprominently feature the word \u201cimitation,\u201d along with a statement that clearly\nindicates the product is not derived from or does not contain meat. This is\nstrongly backed by traditional meat producers and it was in committee as of\nthis writing. (Though if it passed, depending on the regulations, we still may\nnot know if an items is vegan.)<\/p>\n\n\n\n

     Also of some relevance is an agreement\nbetween the FDA and the USDA (U.S. Department of Agriculture) regarding\noversight of human food produced using animal cell technology (6). Could this\nbe a step in the right direction or is it just one step closer to Soylent Green\n(7)? For you old timers out there, the movie takes place in 2022. See\nVRG\u2019s 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\/<\/a>\n<\/p>\n\n\n\n

NEW\nYORK CASES<\/p>\n\n\n\n

A\nNew York case involving an alleged violation of New York\u2019s Deceptive Acts or\nPractices Law is somewhat helpful, if only for the result and not for any\nprecedent it may establish (8). In Borenkoff v Buffalo Wild Wings Inc et al,\n2018 U.S. District Court, Southern District of New York (9) plaintiff alleged\nthat defendants use beef tallow to fry non-meat food items like mozzarella\nsticks and French fries, whereas the \u201cindustry standard\u201d is to use non-beef\ncooking oil to fry such items and that a reasonable consumer would assume that\nnon-meat oil would be used for non-meat foods. The court dismissed the\ncomplaint, deciding that the plaintiff failed to state any \u201cactual injuries\u201d over\nand above the monetary cost of the purchase. It remains subject to conjecture\nwhat the Court would have decided if the case was differently pled.\n  <\/p>\n\n\n\n

     The New York State Department of\nAgriculture & Markets generally regulates food manufactured and packaged\nfor retail sale in New York and local Departments of Health, mostly at the\ncounty level, regulate restaurants and menu labeling. I can say from years of\nexperience that there is often a huge disconnect between State, County and\nMunicipality rules and regulations and their implementation. That being said,\nthere is scant New York State Law on this front for them to interpret or\nimplement anyway.  <\/p>\n\n\n\n

     One bright light on the local level\nhowever is the New York City Bar Association\u2019s Animal Law Committee. They have\nchampioned numerous anti-animal cruelty initiatives over the years (10). As an\napropos example, they issued a report on the use of the names of dairy foods in\nthe labeling of plant-based products. They argued that \u201cthe standard of\nidentity for milk (limiting it to the lacteal secretions of cows) was\nestablished to address the rampant adulteration of dairy milk products in the\nearly 20th century that harmed consumers who wished to purchase cows\u2019 milk, not\nto preclude or hinder the marketing of truthfully labeled new variations or new\nfoods\u201d (11).  <\/p>\n\n\n\n

     As far as any additional, specific\nguidance, there is this statement from the New York State Department of\nAgriculture and Markets about \u201cImitation Foods\u201d which may by extension apply to\nvegan food: \u201cIf any food product is an imitation of another, and is\nnutritionally inferior to that product, it must be labeled \u201cImitation _____,\u201d\nwith the space being filled in with the name of the food imitated, and with the\nword \u201cimitation\u201d in type of uniform size and prominence as used for the name of\nthe food.\u201d (12) Query what \u201cnutritionally inferior\u201d means in this context.\nHowever, as far as I can tell, there are no New York State regulations specific\nto the use of the term \u201cvegan\u201d in food labeling. This being the case, are there\nany other cases or statutes that address the government\u2019s role in the\nregulation of food that may help us in our quest? The answer lies, perhaps, in\nthe regulation of kosher food. <\/p>\n\n\n\n

     Outside of Israel, New York has the\nlargest population of kosher consumers with more than 135,000 products\navailable on the market shelves (13). Possibly as a consequence of this, New\nYork State has had one form of kosher labeling law or another since 1915 \u2013 most\nrecently the Kosher Law Protection Act of 2004 (14). Basically the act\nrequires those who market their food as kosher to label it kosher and to\nidentify the individual certifying the food by filing with the New York State\nDepartment of Agriculture. The Act has been challenged as unconstitutional in\nCommack Self-Service Kosher Meats, Inc. v. Hooker 680 F.3d 194 (2d Cir. 2012)\n(15) where the court, applying the Lemon test from Lemon v. Kurtzman, 403 U.S.\n602 (1971) (16), rejected plaintiff\u2019s contentions and decided that the act is\nconstitutional. Even though it\u2019s a small victory and may be more related to\nreligious questions, it\u2019s one that could have an impact on vegan food\nlabeling.  <\/p>\n\n\n\n

     For now, we as vegans and vegetarians need\nto remain vigilant. I guess I\u2019ll see you at the supermarket. I\u2019ll be the one\nstudying the ingredients on a bag of chocolate covered pretzels. Happy \u201chunting.\u201d  <\/p>\n\n\n\n

References<\/p>\n\n\n\n

(1) https:\/\/www.fda.gov\/regulatory-information\/federal-food-drug-and-cosmetic-act-fdc-act\/fdc-act-chapter-iv-food<\/a><\/p>\n\n\n\n

https:\/\/uscode.house.gov\/view.xhtml?req=granuleid%3AUSC-prelim-title15-chapter39&edition=prelim<\/a><\/p>\n\n\n\n

(2) https:\/\/www.fda.gov\/food\/food-allergensgluten-free-guidance-documents-regulatory-information\/food-allergen-labeling-and-consumer-protection-act-2004-falcpa<\/a><\/p>\n\n\n\n

(3) https:\/\/src.bna.com\/EcD<\/a> <\/p>\n\n\n\n

(4) https:\/\/www.accessdata.fda.gov\/scripts\/cdrh\/cfdocs\/cfcfr\/CFRSearch.cfm?CFRPart=130&showFR=1&subpartNode=21:2.0.1.1.23.1<\/a><\/p>\n\n\n\n

(5) https:\/\/www.congress.gov\/bill\/116th-congress\/house-bill\/4881\/text<\/a> <\/p>\n\n\n\n

(6) https:\/\/www.fda.gov\/food\/domestic-interagency-agreements-food\/formal-agreement-between-fda-and-usda-regarding-oversight-human-food-produced-using-animal-cell<\/a>\n<\/p>\n\n\n\n

(7) https:\/\/en.wikipedia.org\/wiki\/Soylent_Green<\/a> <\/p>\n\n\n\n

(8) https:\/\/codes.findlaw.com\/ny\/general-business-law\/gbs-sect-349.html<\/a> \n<\/p>\n\n\n\n

(9) https:\/\/casetext.com\/case\/borenkoff-v-buffalo-wild-wings-inc<\/a> <\/p>\n\n\n\n

(10) https:\/\/supreme.justia.com\/cases\/federal\/us\/403\/602\/<\/a> <\/p>\n\n\n\n

(11) https:\/\/www.nycbar.org\/issue-policy\/issue\/issues\/Animal\/\/\/\/\/\/1\/10<\/a>\n<\/p>\n\n\n\n

(12) https:\/\/codes.findlaw.com\/ny\/agriculture-and-markets-law\/agm-sect<\/a> <\/p>\n\n\n\n

(13) https:\/\/www.courtlistener.com\/opinion\/799604\/commack-self-service-kosher-meats-inc-v-hooker\/<\/a>\n <\/p>\n\n\n\n

(14) https:\/\/agriculture.ny.gov\/food-safety\/food-labeling#:~:text=Imitation%20Foods,the%20name%20of%20the%20food<\/a>\n  <\/p>\n\n\n\n

(15) http:\/\/www.blslibrary.com\/2012\/06\/12\/kosher-law-protection-act\/<\/a> <\/p>\n\n\n\n

(16) https:\/\/www.nycbar.org\/member-and-career-services\/committees\/reports-listing\/reports\/detail\/use-of-the-names-of-dairy-foods-in-the-labeling-of-plant-based-products<\/a>\n <\/p>\n\n\n\n

(17) https:\/\/asakeisar.com\/en\/vegan-kosher-certification\/<\/a> <\/p>\n\n\n\n

This is not legal advice, for\nwhich you should consult your own legal professional. <\/em>Emilio\nGironda practiced law for 35 years. He has come to the vegan table late in his\njourney of self discovery and evolution. He believes that all living beings\ndeserve our love and compassion and that to live any other way is to fill our\nlives with dust.<\/em><\/p>\n\n\n\n

For more labeling\ninformation, see:<\/p>\n\n\n\n

\n
Vegan Menus and the Law<\/a><\/blockquote>