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

(1) https://www.fda.gov/regulatory-information/federal-food-drug-and-cosmetic-act-fdc-act/fdc-act-chapter-iv-food

https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title15-chapter39&edition=prelim

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

(3) https://src.bna.com/EcD 

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

(5) https://www.congress.gov/bill/116th-congress/house-bill/4881/text 

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

(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/
 

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

(15) http://www.blslibrary.com/2012/06/12/kosher-law-protection-act/ 

(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
 

(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.