FDA to ‘modernize certain standards of identity’ as part of strategic policy roadmap

In its strategic roadmap​,​ released on Thursday, the FDA said it would be “Modernizing certain standards of identity to address current barriers to the development of healthier products while making sure consumers have accurate information about the foods they eat.”​

It added: “Among other steps, FDA intends to issue a request for information to identify and help prioritize which potential standards of identity should be modernized based on their public health value.”​

A spokeswoman for the FDA – which told The Good Food Institute (GFI) in August 2017​​ that it had not had time to address the GFI’s citizen’s petition over the use of dairy terminology to describe plant-based products (almondmilk, soymilk, vegan cheese etc) – told FoodNavigator-USA that, “We will have more to say on these issues in the future, but what’s in the roadmap is all we can say for now.” ​

NMPF: ‘​The lack of nutritional consistency of the dairy imitators is a public health concern’​

So is this good news for industry stakeholders, who have been urging the FDA to weigh into this debate for years?

It all depends on the agency’s motivations, of course, said Chris Galen, SVP communications at the National Milk Producers Federation, which has repeatedly lambasted the agency for “turning a blind eye” ​as plant-based brands continue to violate federal standards of identity (which the GFI argues betrays a misreading of the law).

“We will have to see what FDA has in mind, but our hope is that the agency uses this exercise as an opportunity to assess the accuracy of information consumers are receiving about their food, which will lead then to the prioritization of enforcement of existing dairy standards. ​

“The lack of nutritional consistency of the dairy imitators is a public health concern and a major reason why FDA needs to stop turning a blind eye to the misuse of dairy names. The whole point of standards of identity is to protect consumers and promote honesty in the marketplace.  We would evaluate any proposed modifications with those goals in mind.”​

GFI: It’s time to bring standards of identity into the 21^st​ century​

Jessica Almy, director of policy, The Good Food Institute, meanwhile, welcomed the fact that the FDA plans to look at standards of identity, although responding to the GFI’s petition​​ should be higher up the agency’s priority list, she claimed.

“Given how old many standards of identity are, it's unsurprising that the FDA is taking a look at finally bringing them into the 21st century. A more pressing priority, however, is for the FDA to affirm that compound names, such as soy milk and rice noodles, are permissible. The FDA needs to create confidence for producers that they can communicate accurately with consumers. This means using the terms that consumers themselves use. This will promote fair competition and ultimately result in more and better choices for consumers. ​

“GFI's citizen petition to the FDA has been pending since March 2017. It's high time for the agency to respond by promulgating common-sense regulations around compound names.”​

Michele Simon, executive director at the Plant Based Foods Association, was more optimistic meanwhile: “It’s great to see FDA acknowledge the need to modernize its outdated approach to food labeling. PBFA will continue our own work in guiding our industry members to ensure consumers have the best information possible about the healthier foods they are seeking.​ It will be interesting to see what the agency’s next steps are.”​

Attorney: It will be interesting to see how the standards of identity evolve as new innovations continue to enter our diets

With new technology now enabling firms such as Perfect Day​​ ​​and Memphis Meats​​ ​​to produce proteins that precisely​​ replicate their animal-based counterparts (If it looks like a duck, swims like a duck, and quacks like a duck…)​​, the standards of identity debate is not just about almond milk vs dairy milk, or faba butter vs dairy butter, however, noted some commentators.

Indeed, there is likely "much more driving it ​[the FDA's probe into standards of identity] than the recent innovations in plant-based dairy substitutes," ​speculated Adam Fox, a partner at law firm Squire Patton Boggs.

"I suspect that the particular products are not front of mind for the regulators, whatever concerns they may be raising in the dairy industry," ​Fox told FoodNavigator-USA.​

"However, just as these relative newcomers to the American diet challenge established norms, it will be interesting to see how the standards of identity evolve as new innovations continue to enter our diets and force our perspectives to evolve.”​

The unifying theme behind all of the items on the FDA's 'to do' list when it comes to food and nutrition is "simplified communication of useful information to the consumer," ​claimed George Salmas at The Food Lawyers, a boutique law firm specializing in food and beverage law. 

He added: "Standards of identity are shorthand, simple ways of communicating what’s in the food package.  To the extent FDA brings uniformity to more of them, spreading simple, accurate information is facilitated and confusion is lessened.  New foods like 'meatless burgers' need a standard of identity to equate them among themselves and to rationalize them relative to traditional animal based products.  FDA is asking the public to define what are the most important standards of identity so the agency knows where to focus its resources."​

No mention of ‘natural’ claims…​

While most of the other elements of the agency’s Nutrition Action Plan are already on the industry’s radar, such as sodium reduction and a probe into ‘healthy’ claims, the vague proposal to “Provide new opportunities to make ingredient information more helpful to consumers” ​appears to be new, along with plans to create “a more efficient review system for evaluating health claims on food labels.​”

The plan does not, however, make any reference to ‘natural’ claims on food labels, which the FDA promised to look into in 2015, an omission sure to frustrate industry stakeholders who say the absence of a clear legal definition means they remain vulnerable to false advertising lawsuits, noted Salmas.

"There are at least a couple of big ticket items that industry is waiting on from FDA: The definition of 'dietary fiber' and the definition of 'natural' as applied to food. Both were the subject of requests for public comment by FDA and large swaths of the food industry and food-conscious public weighed in.  What is 'dietary fiber' and what is 'natural' have industry impacts in the billions of dollars."​

Fox, however, said he was not surprised that 'natural' did not feature on the action plan, given that the issue "relates only marginally, at best, to public health, despite its prominence in consumer class-actions driven by the plaintiff’s bar."​

The FDA and standards of identity:​ The FDA, say critics, has fluctuated unhelpfully when it comes to enforcing standards of identity for products such as 'milk' (the lacteal secretions from cows) and 'mayonnaise' (an egg-based product).

When it comes to plant ‘milks' for example, the FDA challenged the term ‘soy milk’ in warning letters to manufacturers Lifesoy​​​ in 2008 and Fong Kee Tofu​​ in 2012 (claiming breaches of the standard of identity for milk), but has thereafter maintained radio silence on the topic.

The agency also raised eyebrows in 2015 by telling Hampton Creek it could keep its ‘Just Mayo’ brand​​ name​​​ for its egg-free spread (which does not comply with the egg-based standard of identity for mayonnaise​​​ ), with minor tweaks to the label, just weeks after accusing it of violating the standard in question.

So what can plant-based brands take away from the Hampton Creek saga?

Was the FDA effectively saying that as long as you include a disclaimer (egg-free/dairy-free) prominently on the label (just as Muscle Milk ‘contains no milk’ and is 'non-dairy') and employ other tactics (words, imagery etc) to ensure that shoppers could be under no illusions about what you’re selling (eg. you’re not being false and misleading), you are OK?

This certainly appears to be how federal judges handling civil lawsuits over plant ‘milk’ vs White Wave Foods and Trader Joe’s (click HERE​​​ ) appeared to interpret the law, with US district judge Vince Chhabria noting that the word ‘soy’ before ‘milk’ cleared up any confusion as to the contents of the package in question.