Reg. 78002‐78004 (Dec. 20, 2002).3 3.24 FTC’s policy on consumer capacity. FTC has applied a similar standard by policy since 1984. See 103 FTC 100, 174 (1984) (“from the perspective of a consumer acting reasonably in the circumstances.”) Only “a significant minority of reasonable consumers” need to be deceived for the practice to be deemed misleading. Id. note 20.
4 3.25 Reasonable consumer versus not misleading “in any particular.” How can you reconcile the tension between the reasonable consumer standard and not misleading in any particular?
5 3.26 The gullible consumer as the ordinary consumer. Are there situations where a gullible consumer might be the ordinary consumer?
6 3.27 Compliance with the FD&C Act no bar to Lanham Act claims. In POM Wonderful LLC v. Coca‐Cola Co., 134 S.Ct. 2228 (2014) the court held that a statutory private right of action under the Lanham Act is not precluded by compliance with the regulatory provisions of the FD&C Act. In effect, the FD&C Act and the Lanham Act are complementary, and the FD&C Act and its regulations do not provide a ceiling on Lanham Act claims. Neither statute forbids Lanham Act claims on labeling regulated by the FD&C Act, and the statutes have coexisted for seventy years. See Chapter 19 for more of this case.
The Battles Over Labeling Substitute Foods
Plant‐based substitutes for milk and meat, such as soymilk and bean burgers, have long been available, but in recent years, the number of similar products proliferated. Beyond soymilk, we now have oat, hemp, flax, pea, almond, rice, and peanut butter milk. Beyond bean burgers, we have cell‐cultured, lab‐grown meat and burgers with plant‐based heme to simulate the blood and taste of beef.62
Soymilk
In 2000, the National Milk Producers Federation petitioned the FDA to, “make clear to manufacturers of imitation dairy products that product names permitted by federal standards of identity, including dairy terms such as ‘milk’, are to be used only on foods actually made from milk from animals like cows, goats, and sheep.”63 A number of states adopted so‐called “truth in labeling” laws to prevent plant‐based products from be called “milk.” One slogan about these laws is, “Almonds don’t lactate.”64 These battles can be distilled to three issues: (1) the government’s power to impose standardized names, (2) whether consumer confusion exists over the nature of these products, and (3) whether there are materials facts undisclosed, such as inferior nutritional composition (or what else should the label say).
FDA has defined milk as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows… .”65 While the definition is clear that plant‐based products are not “milk,” the issue of qualified names, such as “soymilk,” remains unresolved. Since the 1980 Central Hudson decision, the government needs a substantial interest to restrict commercial speech, and the restriction cannot be more extensive than necessary.66 A complete ban on use of the term “milk” on plant‐based alternatives is likely to be seen as more restrictive than necessary to advance the government’s interest. In short, it is doubtful the FDA has the authority to restrict terms like “soymilk” unless the use is false or misleading.
Consider a similar case with “peanut butter,” which has been around since the late 1880s. No one mistakes peanut paste as a dairy product just because “butter” is in the common name. A number of other items with a butter‐like consistency use “butter” in the name. Likewise, the word “milk” has long been used to refer to food squeezed from nuts and soybeans. The term “soymilk” has been used at least as far back as the 1930s and has been common for the past few decades. In 1997, the Soyfoods Association of North America petitioned the FDA recognize the term “soymilk.”67
After the product has been on the market for decades and has been the subject of millions of dollars of advertising and labeling, make it difficult to claim consumers are misled by the name soymilk. In the absence of a standard of identity for soymilk, the law requires that the product be identified by the common or usual name.68 “Soymilk” may have become the common or usual name in the United States. Even if soymilk is not the common or usual name, the name must accurately identify or describe, in as simple terms as possible, the basic nature of the food or its characterizing properties or ingredients.69 A number of courts have found that “soymilk” is an appropriate statement of identity.70
Nonetheless, debate continues over whether soymilk and similar products fail to disclose material facts about their comparative nutritional composition. However, such comparisons are complicated. Cow’s milk is an excellent source of protein, calcium, vitamin A, and vitamin D. On the other hand, soymilk contains more fiber than cow’s milk and reduces cholesterol instead of increasing it. Moreover, the Nutrition Facts provide consumers comparison information.
You Say Meat, I Say ‘Schmeat
Similar debate lines have drawn up over the naming of meat substitutes. Should cell‐cultured meat be allowed to be called “meat”? Should plant‐based patties be allowed to use the word “burger”? The U.S. Cattlemen’s Association filed a petition with FSIS requesting the agency officially limit the labeling of “beef” to “cattle born, raised, and harvested in the traditional manner, and that products that are labeled as meat” should be limited to those that are derived from the tissue or flesh of an animal harvested in the traditional manner. A number of states have passed laws prohibiting use of meat descriptions or terms on plant‐based or cell‐cultured products.
As with the milk substitutes, the issues come down to the power to impose standardized names, whether consumer confusion exists over the nature of these products, and whether there are materials facts undisclosed (or what else should the label say). Proponents for strict limitation on the use terms like “meat” and “burger” will need to establish that such restriction does not violate the First Amendment. While the government has the right to protect consumer from false or misleading labeling, a complete ban on the use of such terms is unlikely to meet the burden of intermediate scrutiny by being no more restrictive than necessary to advance that interest.71
3.6 DECEPTIVE PACKAGING
FD&C Act section 403(d) states that a food is misbranded “if its container is so made, formed, or filled as to be misleading.” FDA has rarely taken enforcement action against misleading packaging under this section.
As the following case illustrates, courts have been reluctant to find violations of this provision. Part of the reason some courts have been reluctant to find deceptive packaging is because the net contents of the package is declared on the label. In addition, a certain level of slack filling is required for machine filling. Because the packages clearly do not have to be packed tightly, courts have been reluctant to find that
