Sales of plant-based milk products have grown 6 percent over the past year, now taking up 13 percent of the milk category, intellectual property lawyer Danielle DeFilippis told food manufacturers at Food Day, presented by NJBIZ and the New Jersey Manufacturing Extension Program on Nov. 4 in Freehold. Plant-based yogurt has grown 39 percent, and plant-based ice cream has grown 27 percent.
Despite attention from the dairy industry to attempt to have alternative milk companies change their labeling—the United States Court of Appeals for the Ninth Circuit dismissed a class action lawsuit earlier this year against California-based Blue Diamond Growers, which produces Blue Diamond almond milk—a 2017 International Food Information Council survey found three-quarters of American consumers didn’t think plant-based milk products actually contain cow’s milk.
“There are strong organizations that have a real interest in this. You have the ag producers, the milk producers, and now these plant-based producers,” DeFilippis said. “The [Food and Drug Administration] has the authority to issue standards of identity that address the characteristics of food.”
DeFilippis, who co-chairs the intellectual property group at Norris McLaughlin, also addressed issues surrounding plant-based meats.
According to the Plant-Based Food Association, plant-based meat represents 2 percent of all retail packaged meat sales. The industry is worth more than $800 million, but currently, a bipartisan bill labeling plant-based meat as imitation is proposed in Congress.
The Real Marketing Edible Artificials Truthfully Act of 2019, or the Real MEAT Act, requires any products made to simulate beef, but not coming from a cow, to be labeled as “imitation.”
“What’s interesting is that there are several different words being used. Meat, beef, burger. What’s okay? It’s largely unresolved,” she said. “Right now, there is a definition of meat under the FDA, so that’s one thing that’s being addressed in this bill. They’re saying the definitions aren’t completely clear on this and that there needs to be some resolution on the federal level [that may] relieve the flurry of lawsuits [around it].”
While branding disruptive products—animal product alternatives or otherwise—companies need to do their own research to find out if they’re compliant with federal regulations like the Food and Drug Administration; the Food, Drug & Cosmetic Act; the Fair Packaging and Labeling Act; and the Federal Lanham Act, which governs trademarks, service marks and unfair competition.
“They don’t pre-approve them, so you’re stuck by your own research to make sure your label is compliant with those federal laws,” said DeFilippis.
The FDA will consider a product misbranded if it contains labeling that is false or misleading, is offered for sale under another food’s name, is an imitation of another food but doesn’t state that it is, it fails to contain required nutritional information, or it doesn’t include other required information like allergens.
To mitigate your brand’s legal woes, she said, “make sure your labels are compliant, make sure what you have on there isn’t going to anger your competitors, and do what you need to protect it going forward.”