What’s in a Name? Looming Food Identity Issues…

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Chase Purdy at Quartz recently published an article with the following headline: “To lure people put off by the freakiness of lab-made meat, this is what the industry wants to call it.” It got me thinking about the importance of names and narratives in the food world, and how this is not the first time we’ve wrestled with the naming and framing of a food item.

In the early 20th century, the Food and Drug Administration (FDA) put into place regulations that established “standards of identity” for certain foods. These “standards of identity” were meant to address issues of economic adulteration, i.e., when food manufacturers would charge full price for an item but use less expensive ingredients (see U.S. v. Carolene Products Co. about filled milk). “Standards of identity” also help consumers know exactly what it is they are purchasing. For example, if a consumer purchases a fruit butter, they know they are not buying a fruit jelly or fruit preserve or jam. (Did you know there was a difference, established in law?)

Not all foods, however, have a “standard of identity.” In these situations, food companies have some latitude in determining the name of their food product: if there’s no “standard of identity,” the food company should use the common or usual name of the food. If that isn’t applicable, the food company should use “an appropriately descriptive term, or when the nature of the food is obvious, a fanciful name commonly used by the public for such food.”

As the food industry changes, new products hit the markets, and consumers push back on certain ingredients (and desire others), issues of identity are back in the news and not just as a matter of economic adulteration.

A recent notable example is Hampton Creek’s use of the name Just Mayo for its plant-based spread. Mayonnaise has a standard of identity, which requires an egg-yolk-containing ingredient. In Aug., 2015, Hampton Creek received a warning letter from the FDA asserting that Hampton Creek’s plant-based product could not use the term “mayo” because the product did not contain any eggs. The FDA also wrote that

“[t]he use of the term ‘mayo’ in the product name and the image of an egg may be misleading to consumers because it may lead them to believe that the products are the standardized food, mayonnaise, which must contain eggs.”

To satisfy the FDA, Hampton Creek increased the size of the disclaimer “egg-free,” reduced the size of the egg image, and added the phrase “spread and dressing” to the label.

Another example of a naming issue is the use of “evaporated cane juice” (instead of “sugar”) in ingredient lists. This past summer, after a spate of lawsuits against food companies, the FDA issued final guidance more explicitly discouraging use of the term “evaporated cane juice,” saying that the term is

“false or misleading because it suggests that the sweetener is ‘juice’ or is made from a ‘juice’ and does not reveal that its most basic nature and characterizing properties are those of a sugar.”

And who can forget the 2012 news frenzy over a certain Beef Products Inc. (BPI) product that BPI called “lean finely textured beef” (LFTB) and some in the media called “pink slime.”

What you call a food clearly influences consumers’ opinions and purchasing decisions.

Food companies have a lot to balance in naming foods, particularly when it comes to novel foods. Does a new food product fit into an existing standard of identity? If not, how can the food product be described accurately, but also so as not to be misleading? How can food companies successfully walk the line between creative, edge-pushing marketing and consumer deception? And, what cautions should food companies—especially those that are working to re-brand (or, some might say, obscure) ingredients they think consumers don’t want—take from the examples given above?

So, what’s in a name? I would assert that there is a lot in a name, actually. The Good Food Institute, as reported in Chase Purdy’s article, wants to call meat grown in a lab “clean food” or “clean meat.” Are consumers more likely to select a product called “clean meat” as opposed to “lab-grown meat”? Will consumers understand what it is their buying if it is called “clean food”? Only time will tell.

It seems to me that with all the innovation happening in the food space and the desire of food companies to respond to consumers’ demands for certain food specifications, we may be asking ourselves “what’s in a name?” more and more. I know we will be.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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