For years, the FDA has been embroiled in a debate over the ability of companies to name their products. The department often regulates what food products can or can’t be called. The problem is, those rules are often backed by wealthy special interests seeking to push products out of the market to decrease competition.
In other words, America has reached an edible skeuomorphism breaking point.
Take, for example, when the FDA sought to ban the use of the term “almond milk,” arguing that milk alternatives like oat, soy, and coconut were not dairy, and therefore should not be able to call themselves “milk.”
As Trump FDA Commissioner Scott Gottlieb said at the time, “An almond doesn’t lactate, I will confess.”
The move, of course, was pushed by America’s powerful dairy industry, which was seeing their market share eroded by the growing prevalence of non-dairy milks. Between 2012 and 2017, dairy milk sales dropped 15%, while sales of non-dairy milks grew by 60%.
Naturally, Sen. Tammy Baldwin, a Democrat from Wisconsin, America’s Dairyland, introduced a bill in early 2017 that would ban the use of the term “milk” in nondairy products.
“If a consumer is confused about the source of a product labeled ‘almond milk,’ then he has bigger problems than being confused about which milk to buy,” said Justin Pearson, a senior attorney at the free market-based Institute for Justice. At the time, Pearson was also defending a dairy farmer against a Florida rule requiring she inject her all-natural skim milk with extra Vitamin D before she could call it “skim milk.”
But similar naming battles are headed to America based on the growth of the previously oxymoronic “plant-based meats” with which restaurants have been using to make vegetarian-friendly “impossible burgers.” Earlier this year, the European Union shot down an attempt to ban companies from using terms that compared meatless products to their carnivore-friendly counterparts, such as “veggie burgers.” A vegan-friendly hot dog, presumably, would likely be called something like a “tofu tube.”
The effort is beginning to take hold in America, where sales of plant-based meats have skyrocketed. In over a dozen states, meat labeling legislation has been introduced, and more is likely on the way.
(Upon doing a taste test of both a regular burger and a plant-based burger side-by-side, I found the “impossible burger” to be entirely possible.)
Even real meat isn’t safe from technically incorrect marketing labels: 27-year-old Lincoln, Nebraska man Ander Christensen appeared before his City Council last September with a heartfelt plea for the city’s leaders to ban the term “boneless wings” from use in restaurants.
“Boneless chicken wings are just chicken tenders, which are already boneless,” Christensen pleaded to the council. “I don’t go to order boneless tacos. I don’t go and order boneless club sandwiches,” he said. “It’s just what’s expected.” Where is the FDA on this pressing matter?
In addition to telling businesses what they can’t say, the FDA also has a history of mandating what they must say. For instance, in 2018, as a result of the Affordable Care Act, the FDA began requiring certain restaurants to display calorie counts on their menus, guaranteeing a more miserable dining experience.
But, of course, the things a company says are much more likely to catch the FDA’s eye than the ones it doesn’t. Take, for instance, makers of chewing gum, a product which is about a half-century older than the FDA itself.
Gum companies would be eager to talk about the many scientific studies that demonstrate a range of health benefits to chewing gum – from dental health, to appetite suppression, to cognitive performance.
But the FDA has other thoughts. Currently, gum is regulated as a food – however, if a company were to make any claims about their gum’s health benefits, it would then be regulated as a drug, and then presumably only sold in dark alleys or at jam band concerts. According to the FDA, any discussion of the magical, bacteria-killing properties of human saliva, which chewing gum helps activate, would be strictly forbidden (and thus ruin a pretty bad pick-up line.)
For now, longtime civil servant Janet Woodcock temporarily leads the agency–the top permanent position top spot at the FDA remains open until President Joe Biden chooses a commissioner. It’s a curious decision, given how important the FDA is in the approval and distribution of the COVID-19 vaccine. But it also leaves uncertainty as to how the department will handle these weirder issues.
Of course, we need the FDA to be vigilant in keeping the public safe from poisons and toxins. Food safety is of paramount importance especially as the American population continues to grow.
But the Department’s foray into refereeing language is entirely out of bounds — in these cases, the agency only serves to protect us from the First Amendment.