• As previously reported on this blog, FDA has been considering whether plant-based products may continue to be marketed using names of dairy foods like almond milk, soy yogurt, or vegan cheese.  A number of dairy products, including milk, cream, yogurt, and cheeses are the subjects of standards of identity.  Foods subject to a standard of identity must meet the regulatory definition for the food (e.g. milk is defined in part as “lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows”) and must be labeled using the standard of identity name.  Nonstandardized foods must also be labeled using the common or usual name.
  • On September 28, 2018, FDA published in the Federal Register a solicitation for public comment regarding the use of the names of dairy foods in the labeling of plant-based products.  FDA explains that even though the common or usual name for a plant-based product may include a dairy term, FDA may still act if the name is misleading.  In its solicitation, FDA notes that it can provide names for nonstandardized foods in regulations.  FDA is soliciting input on:
    • The current marketing conditions and labeling costs of plant-based products;
    • Consumer understanding, perception, purchase, and consumption of plant-based products;
    • Consumer understanding regarding the basic nature, characteristics, and properties of these plant-based products;
    • Consumer understanding of the nutritional content of plant-based products and dairy foods and the effect, if any, on consumer purchases and uses; and
    • The role of plant-based products and dairy foods in meeting the recommendations in the Dietary Guidelines.
  • FDA has provided a series of questions for each topic and is seeking comments by November 27, 2018.  Keller and Heckman will publish a client alert to provide additional details on the notice.

Please feel free to contact Keller and Heckman at fooddrug@khlaw.com for assistance providing FDA comments.