Issue #13 - When is Meat not Meat?
Will we actually talk about something that has to do with the law this week!?
Two weeks ago we pointed out the “anti-virtuous-circle” that is impacting the meat industry currently. The three inter-related points of connection are: climate change, technology advancements, and concentration in the processing tier. Last week, we explored how the meat industry is contributing to climate change. Next week, we will look at some of the amazing new technologies in the “meat” industry. But this week, I want to set the stage a little.
I put “meat” in quotes because there’s actually some debate about whether what I (derisively maybe) called “MeatTech” a few posts ago can (or should) be called “meat” in the first place. So, because I AM, in fact, a lawyer; I thought we could take a minute to look at a really interesting legal issue in the food industry: Standards of Identity.
In other words: if you took peas, mung beans, fava beans, brown rice, cocoa butter, coconut oil, canola oil, potato starch, methylcellulose (a plant fiber derivative),calcium, iron, salt, potassium chloride, beet juice, and apple extract,1 mixed them all together in a ball, compressed them into a patty, then pre-cooked it, should you be allowed to call it “meat”? Or is calling it “Beyond Meat” sufficient to make clear that it’s not actually meat?
The Food and Drug Administration (“FDA”) has rules about what producers are allowed to call the things that we eat. The FDA regulate these standards of identity for consumer safety purposes so that you, the consumer, can be sure that if you are eating “hamburger” that you are eating “chopped fresh and/or frozen beef with or without the addition of beef fat as such and/or seasoning, [which] shall not contain more than 30 percent fat, and shall not contain added water, phosphates, binders, or extenders.”2
The FDA uses a variety of methods to determine an appropriate standard of identity. For example, the standard might be based on their ingredients (like jams or preserves), compositional characteristics (like the level of milkfat permitted in different kinds of milk), method of production (like the way in which different cheeses are made), or physical characteristics (like particle size for cracked wheat).3
Additionally, some states also have rules about what producers can call their products. In Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, and Wyoming all have laws prohibiting packaging a product as “meat” if it “is not derived from harvested production livestock or poultry.”4 And, here in Wisconsin “Margarine” must be labelled on a package in at least 20-point font and may not be served at a restaurant as a substitute for table butter unless specifically ordered by the customer.5
So, what if a product intended as food doesn’t fall into one of the numerous neat and tidy categories defined by the FDA or a state regulator? The FDA will look at truth in labeling. The standard used by the FDA is whether the label is “false or misleading” - or in FDA-speak “misbranded.”6
For example, is a product called “JUST EGG” that is a plant-based egg-substitute misbranded? This same company manufactures a product called “JUST MAYO” that doesn’t actually contain any egg. The Standard of Identity for “mayonnaise” however, is clear:
“Mayonnaise is the emulsified semisolid food prepared from vegetable oil(s), one or both of the acidifying ingredients specified in paragraph (b) of this section, and one or more of the egg yolk-containing ingredients specified in paragraph (c) of this section.”7
In 2015 the FDA sent Hampton Creek (the company that makes JUST MAYO) a friendly letter saying that they (the FDA) had received a number of complaints that the label was “false or misleading.” Hampton Creek argued that “JUST” doesn’t mean “only”, but it means “fair” and “equitable.” The FDA did not require Hampton Creek to pull the product off the shelf, but instead ended up settling on a package design that made it more clear that the product does not contain egg. It increased the font size on “JUST” to make it more clear that it is a brand; it also increased font sizes on “egg-free” and added “Spread & Dressing” along with other indicators to make it clear that it isn’t actually “mayonnaise.”
Similarly, package design on Beyond Meat’s products is instructive.
As you can see, “plant-based patties” are not only all-caps (although so is everything else) it is in a contrasting color to the other text and in large letters. The product advertised “20G of ‘plant protein’ per serving.” There is a large and prominent call-out of the “new meatier taste.” In other words, if you looked at this package, despite the word “meat” on the package, it is clear that it is, in fact, plant-based.
In 2005, the FDA started working on an overhaul of standards of identity. That project got put on hold for a variety of reasons - officially “they just didn’t have the time or resources” to deal with it. Unofficially, there are numerous industry participants that are exerting huge amounts of pressure for the agency to decide one way or the other; meat (and dairy producers - related to the use of terms like “milk”) are pushing for strict standards and enforcement, while technology companies are pushing for broader rules. It was revisited in 2020 but the comment period has come and gone and the FDA has made no actual progress.
Personally, I think the FDA is hoping the market just sorts this out. The FDA has bigger problems on its hands like, you know, approving COVID-19 vaccines, and making sure CBD-hucksters aren’t touting its cancer-curing properties [ed note: CBD does not cure cancer]. Moreover, I think they are waiting for the technology to settle down a little so they can get a better handle on what the range of options are.
As we’ll see next time, there are three main technologies for meat-based alternatives: plant-based substitutes; genetically engineered yeasts; and 3-D printing-like technologies from either plant or even animal-based stem-cells.8
9 CFR 319.15(b)
Wis. Stat. 97.18
21 CFR 169.140
Including one based here in Madison, WI called “Cultured Decadence” that is working with cellular lobster technology.