The Challenges of Naming Novel Food Ingredients: A Legal Perspective
Rebecca Cross is the founder of Greenfare Law, a boutique law firm advising companies at all stages of growth on a wide range of legal issues, including advertising, labeling, product safety, supply chain management, and IP protection.
The views expressed in this article are the author’s own and do not necessarily represent those of AgFunderNews.
What’s in a Name?
As food tech companies advance toward commercialization, one significant hurdle they face is the challenge of naming and labeling novel ingredients. This balance of regulatory compliance, brand strategy, and consumer trust is becoming increasingly intricate.
The Legal Landscape
While much focus has been on product naming and standards of identity, the naming of ingredients themselves has received less attention. A recent lawsuit against Perfect Day highlights this issue, raising important questions about how companies accurately describe their ingredients.
The Lawsuit Against Perfect Day
The Organic Consumers Association and Toxin Free USA filed a lawsuit against Perfect Day, challenging the company’s core ingredient, branded as ProFerm and advertised as “animal-free whey protein.” The lawsuit alleges that this label is misleading, as it does not equate with traditional cow-derived whey protein due to high fermentation residue levels.
Implications of FDA Regulations
From a regulatory standpoint, Perfect Day received a no questions letter from the FDA, affirming the Generally Recognized as Safe (GRAS) status of ProFerm. However, the FDA did not specify how the ingredient should be labeled, only that it include allergenic milk proteins in its description.
Perfect Day opted to describe its ingredient as whey protein derived from microflora rather than cows, highlighting its functional similarity to milk. This proactive approach indicates transparency amidst growing scrutiny from organizations such as the Organic Consumers Association.
Navigating Ingredient Naming
Food tech companies often choose proprietary brand names for their ingredients, similar to Perfect Day’s ProFerm. However, FDA labeling regulations still require a common or usual name, creating tension for those producing familiar compounds through novel means such as precision fermentation.
The Dilemma of Novel vs. Common
The challenge arises in naming an ingredient that is both common and exceptional; if the most accurate scientific description is complex, it may alienate consumers. Unfortunately, the FDA has not issued clear guidance on how to determine common or usual names, which complicates this further.
Risks for Emerging Food Technology Companies
Emerging food technology firms face heightened vulnerability regarding ingredient naming, particularly as they present competition to conventional methods. The absence of a pre-market review process for naming makes it critical for companies to consider how they present their products.
Mitigation Strategies
Contextual Marketing
Implement phrases like “animal-free” alongside straightforward explanations of your production processes. Avoid broad claims like “identical to X” unless confident that minor compositional differences won’t pose legal risks.
Documentation and Testing
Maintain rigorous testing documentation to defend against potential legal challenges regarding ingredient labeling. Past experiences indicate that rigorous testing can lead to favorable legal outcomes and mitigate the risks significantly.
Conclusion
The ongoing discussions surrounding ingredient naming reflect a larger battle between innovation and tradition in the food industry. As food tech companies continue to evolve, they must navigate the complexities of legal and consumer expectations while striving for transparency and accuracy in labeling.
