A Standard of Identity Crisis

By: Leslie G. Sarasin, President and CEO, Food Marketing Institute

Anyone who has been on the receiving end of a teenager’s eye roll over some bit of language we’ve used, knows that words change, falling in and out of style. Indeed, words can entirely shift meaning over time as circumstances, usage and understandings change. For example, being naughty once meant you didn’t have anything (naught), then it migrated to describe utterly evil or immoral acts and then it shifted again, watering down to simply be a descriptor of those who mildly misbehave.

We also know that times of great innovation often generate new words and infiltrate our vocabulary in ways that add new layers of meaning to existing terminology. Just consider how the space race changed the way we think of and use words such as thrust, capsule, blast-off and orbit. 

This transient nature of vocabulary – where words can shift and take on additional definitions or shades of meaning -- is becoming a significant issue in the world of food retail. 

Within the complex Federal Food Drug and Cosmetic Act (FFDCA)  (21 U.S. Code §341)  lies a directive for the Food and Drug Administration (FDA) to establish definitions and standards for food. A common paraphrase of the code reads, “in an effort to promote honesty and fair dealing for the benefit of consumers, the FDA is authorized to establish by regulation, a common or usual name, a reasonable definition and standard of identity, a reasonable standard of quality, and reasonable standards of fill of the container for any food.”  This regulatory requirement to establish the criteria, which must be met before a product may be labeled as a certain food, is difficult enough under the best of circumstances but in a world of shifting values, innovation and migrating food vernacular it gets even more complicated. 

In 2015, Hampton Creek challenged the mailability of the standard of identity when it produced a spread that was egg-free and branded it as “Just Mayo,” even though the product did not comply with the egg-based standard of identity for mayonnaise. FDA allowed Hampton Creek to keep the “Just Mayo” brand by making a few adjustments to the label, including a disclaimer that the product was egg-free. Mayonnaise was just the tip of the iceberg. Courts involved in other product standard of identity cases seem to follow a common track: if there is a disclaimer and no imagery that seeks to mislead the purchaser, innovations that stretch the standard of identity boundaries can stand. But recently, perhaps because the dairy case is racked with standard of identity cases, FDA took up the definition of milk. FDA Commissioner Scott Gottlieb indicated the agency must review and modernize its standards of identity for dairy products.

Must the liquid be secreted from mammals to be called milk or can it also be an extract derived from nuts or soy? A strict reading of the FDA’s milk standard of identity leans on the mammal side of the equation, but a review of “milk” in Webster’s dictionary reveals other options, the third in the series of milk definitions reads, any liquid resembling this(cow secretion) as the liquid from a coconut, the juice or sap of certain plants, various pharmaceutical preparation.” While the food retailer may think in terms of simply desiring to provide customers whichever “milk” product they choose, there remains the question of also providing shoppers with guidance (and when they may request it, additional information) regarding nutritional equivalency and ingredient profiles, so they know exactly what they are purchasing.

However, the dairy aisle is not the only category with definition difficulties. The rise of “vegetarian meat” is challenging notions of that which can legitimately be included in the meat case. While the questions this issue raises standard of identity considerations and even involves an additional government agency, it still begs the question of how far we can reasonably stretch food vocabulary. Is meat defined by its point of origin or whether the end-product – even if plant based – tastes like meat? 

In this age of innovation and consumer demand for products adhering to certain values, regulatory agencies such as the FDA will need all the help they can get to resolve these vocabulary and definition challenges. As we might imagine, traditional products will strongly advocate for standards and definitions to remain historically accurate and consistent. After all, isn’t that the point of having a standard and grounded definition? The traditionalists will argue that new innovations should be called something entirely different if it doesn’t meet current criteria. Innovators, on the other hand, will argue they offer comparably tasting alternatives that meet consumer dietary demands. The food retailer, as the bridge linking the products and the consumers, will be asked to weigh in on these questions, especially since the purpose of the standard of identity is “to promote honesty and fair dealing for the benefit of consumers” and the retailer is the link in the food chain closest to the consumer. 

All of this means we must begin to understand consumer awareness, beliefs and preferences if we are going to be of maximum help to the regulatory agencies in addressing this emerging standard of identity crisis. It also means we must begin engaging in some serious conversations about our role when it comes to consumer education and highlighting nutritional and ingredient information. And who knows, along the way we may resolve Shakespeare’s quandary of whether a rose by any other name would smell as sweet. 

FMI would appreciate hearing your thoughts, leanings and suggestions regarding the resources this issue will require. If your concerns are more consumer based, please contact David Fikes (dfikes@fmi.org). If they are more regulatory in nature, please contact Stephanie Harris (sbharris@fmi.org) or Hilary Thesmar (hthesmar@fmi.org).