Why standards of identity matter

by Keith Nunes
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KANSAS CITY — This week Unilever sued Hampton Creek over the former’s implication that the latter’s Just Mayo spread is not mayonnaise. Unilever points to the Food and Drug Administration’s standard of identity for mayonnaise as proof Hampton Creek is violating the law and deceiving consumers.

The F.D.A.’s inconsistent approach to the enforcement of the standard of identity regulations has created a confusing, untenable situation for the food and beverage industry. The F.D.A. must do better, because further erosion of the concept may lead to consumer confusion and create an unfair marketplace for companies making an effort to comply with the regulations.

The Unilever, Hampton Creek lawsuit is the latest example of a problem that has been festering for years. Attend any meeting of dairy processors and you will quickly learn that plant-based beverages that market themselves as “milk” do not meet the standard of identity. It’s easy to see why reading the first sentence of the standard of identity for milk, which reads — “Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”

The makers of soy milk and almond milk respond by noting that the nomenclature in no way violates the regulations because the name incorporates additional qualifying language. By calling such products soy milk and almond milk clearly differentiates them from regular milk.

Left unsaid is the use of the word milk allows the manufacturers of soy and almond milks to capitalize on the millions of dollars that have been spent building a marketing- and research-based health halo around milk as defined in the regulations. In the same vein, by implying its product is “Just Mayo,” Hampton Creek is capitalizing on the marketing efforts real mayonnaise manufacturers have invested in over the years to differentiate their products from other spreads on the market.

It would be a mistake to say the current standards of identity regulations are ideal. In many cases they may be considered outdated, and as ingredient technologies continue to develop they may be nearing obsolescence. But that is no excuse for them to be ignored or circumvented. Mechanisms are in place to address areas of concern and they should be used.

The original purpose for the standards of identity was to ensure consumers knew what they were buying and that rationale still holds today.

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