When buying hamburger meat, the options are listed by their lean-to-fat ratio, typically 80/20 (a breakdown of 80% lean beef to 20% fat), 85/15, and 90/10. By law ground beef can have no more than 30% fat. With more lab grown meat companies hitting the market, there could be a huge number of new meat based products available in the next decade. How will the remarkable and perhaps excessive specificity, as seen above with ground beef, of current food definition and labeling regulations be able to deal with new innovations like cultivated meat and other alternative protein sources?
Traditional meat product inspection and labeling is overseen by the Department of Agriculture (USDA), while the Food and Drug Administration (FDA) has largely claimed the cultured-meat territory and maintains an inventory of “Human Food Made with Cultured Animal Cells.” The list only has two products so far, both of which took a little over a year and half to receive FDA approval after going through a lengthy approval process. Looking to the future, both the USDA and the FDA will need to collaborate on the approval process for labeling new mixed-meat items so as to not limit culinary innovators and product development.
Highlights:
Consumers should be able to trust the information given to them about the products they buy; they should not be told what they are allowed to buy or be discouraged by the government from buying the food that matches their preferences.
Ultimately the government must come to understand that its most basic role in regulating food is to protect and benefit consumers, not special interest groups, entrenched companies, or activists
The fundamental issue with this sort of “commercial lawfare” is its inefficiency: when companies find ways to compete outside of the market – where they will compete on price and quality of their products – the consumer loses.
Key Recommendations:
FDA has been publicly developing their regulatory capacity for lab-grown since at least 2018. However, it took the FDA a little under two years to approve cultivated chicken for sale after companies initially applied for approval. Being the first in an industry, there were likely collaboration quirks that needed to be worked out between FDA and USDA. Going forward, FDA should streamline the inspection of production facilities to meet consumer demand and allow for market growth.
At some point in the future, there will be products that are a mix of lab grown meat and traditional meat. Such mixed products may face regulatory and labeling complications, FDA and USDA should work out guidelines for approval to meet these products as they become ready for market.
Lab Grown Labeling Tensions
By Owen Yingling
New foods are on the horizon. With 3D printed meat, invested proteins and genetic modification we could theoretically have steak flavored broccoli and blueberry lobster in the next few decades. Reflecting on the regulatory hangups and love triangle-esque labeling debates, will we be ready for the new wave of dinner options?
An overview of food regulation
While the FDA’s labeling and naming standards helped protect consumers from the chaos of the food and drug industry in the early 20th century, statutory vagueness has turned them into a battleground between deep pocket special interests and consumer protection. By subverting market norms and awarding anti-competitive advantages, these grants of special privilege hurt consumers more than anything else.
The first major and comprehensive law requiring accurate product labeling was the Food and Drug Act of 1906, created in response to wide-spread adulteration and mislabeling of food products. There is a persuasive economic rationale behind this law and similar laws passed later that strengthened the government’s enforcement power and eventually created the FDA – food producers know more about the quality of goods than consumers, so cheaper lower quality products can drive out higher quality ones unless regulators set minimum standards or at the very least ensure that consumers have adequate information to make decisions. But, it is easy to see how such regulations, whether minimum standards or strict labeling requirements can get out of hand.
As long as food related industries have been regulated in the United States, whether farming, meat packing or butter manufacturing, entrenched companies have lobbied for new regulations to protect their market share.
Label warfare
Until recently, however, “Big Food'' was broadly united in asserting the rights of companies to name and label their products with as much freedom as possible. The industry, for example, spent tens of millions of dollars in lobbying efforts in 2014 to fight against special label requirements for genetically modified products and remove country of origin label requirements. While those efforts might on face seem cartoonishly evil: “Big Food trying to trick consumers by hiding what they put in products,” there were good reasons for this lobbying. Because of negative public opinion towards GMOS spurred by activists, food companies had a legitimate reason to worry that GMO labeling would cost them revenue and unfairly harm their brands without any benefit for consumers.
Also, clearly identifying what products were genetically modified can get tricky unless you’re talking about raw fruits and vegetables or small batch foods with very limited ingredients and field sources.
Similarly, both the USDA and independent researchers concluded that the cost of country of origin labeling often outweighs any benefit to consumers. And when contextualizing the stance that Big Food took towards labeling, it is important to note that the First Amendment is applicable to what companies are allowed to do on their packaging – so this united front of food companies and their well funded lawyers and lobbyists with necessarily broad interpretations of the First Amendment helped support the sanctity of the amendment both in court and in the legislative chambers.
But the market environment is different now – consumer preferences have fragmented and technology has subtly transformed much of the food on the grocery shelves. The shift in market dynamics has driven companies who once would have supported each other in label disputes to sit on opposing sides.
The Great Grocery Store Divorce
The first visible signs of rupture occurred in 2018 when a dozen large food companies including Kraft, Nestle and Dean Foods left the Grocery Manufacturers Association – the lobbying behemoth that was the face of the industry in Washington D.C. The organization changed its name to the Consumer Brands Association and changed its focus to encompass a broader range of consumer goods, but the organization still lost half its yearly revenue after the split, while many of its former sponsors have gone on to create their own sector specific lobbying groups. Former allies now fight over regulatory issues ranging from added sugar labeling to the FDA’s recommended daily sodium intake. But disputes over labels are one of the hottest topics, fracturing even industry specific lobbying groups, such as the International Dairy Foods Association which lost the support of Dean Foods, the largest dairy manufacturer in the US, because Dean didn’t think the group had done enough to lobby against the labeling of plant-based milk alternatives.
Can You Milk An Oat?
The controversy surrounding the labeling of plant-based milk alternatives is an important example of corporate conflict taking place through regulatory channels. The dispute lasted from 2013 to 2018 – almost five years of lobbying warfare between dairy and milk substitute companies about whether or not it was legal to call something that doesn’t come from an animal “milk,” even if it was obviously being marketed as a milk substitute. For the sake of their products, the dairy industry tried to ensure that well known descriptors like “soy milk” or “almond milk” would become a no-go and need to be replaced.
To the legalist the answer appeared obvious: the FDA standards of identity define “milk” to be a “lacteal secretion …obtained from the complete milking of one or more healthy cows.” But five years of acrimonious debate and multiple studies, surveys, and focus groups led the FDA to the opposite conclusion: consumers knew that these milk substitutes were not milk, indeed the reason they bought them was because they weren’t actually milk, not because they had been tricked by labels. The FDA chose to focus on the commonly understood usage of words and the totality of the information – like putting the non-cow source of the milk before “milk” as most companies did – that consumers were receiving, instead of relying strictly on the words of its standard of identity as the dairy industry would have liked. The case was thus an important recent victory for freedom of speech and innovative and disruptive companies against the entrenched dairy industry
To Eat Or Not To Eat (“healthy”)
A more blatantly obvious example of FDA labeling being used as a battleground for regulatory capture is the case of the “healthy” label. In a rule first promulgated in 1994, the FDA allowed companies to voluntarily label their products as “healthy” if they had limited amounts of fat, cholesterol and sodium and contained over a certain amount of healthy nutrients. The science of what foods and nutrients are really “good” or “bad” for you is a complex and often controversial field. The FDA rules benefited companies who could concoct foods that met the nutritional rules, it had enough oversights – particularly egregious the lack of restrictions on added sugars – that it was largely ineffective in making foods healthier. Instead it confused customers and led to conflicts with companies who saw the “healthiness” of their products as a key part of their brand but technically couldn’t call their products “healthy” under these regulations. In 2016, the FDA kept KIND Bar from calling some of their nutrition bars “healthy” because of the saturated fat content. The FDA eventually relented and let them use “healthy,” but only if it was clearly not represented as a nutritional claim. KIND Bar has continually contested the decision, claiming that the excessive fat from the nuts in the bar is healthy fat. Should the FDA really be making a strict claim that KIND Bar is wrong while also allowing unlimited amounts of added sugar to products labeled “healthy?”
Recently, the FDA announced that it was seeking to revise the “healthy” label and wrote up a new proposal. The content is less important than the battle lines that it drew: the National Yogurt Association stood firm in opposition, requesting that the FDA “refrain from establishing rigid limits'' on what would make something healthy. While supported by Mills and Kellogg’s, the Consumer Brand Association waffled on the issue, perhaps to avoid a second schism, while the members of the International Fresh Produce Association cheered for the government, and former executives of the Grocery Manufacturers Association, that much missed Leviathan, looked on in dismay.
Yet for the moment, consumers are not greatly impacted by these labeling controversies. Most consumers don’t care if the word “almond” is a bit larger or smaller on their almond milk, if the word “milk” is replaced with “milk substitute,” or if “plant based” is legally required before “beef” on their vegetarian burger patties. It seems like a trivial issue, existing only to sustain a handful of lawyers and frustrate regulators and executives. The problem, however, is that unless the government steps back and thinks food labeling controversies are only going to get worse. As technology improves, there is plenty of room for these issues to get worse. From the marketing of cultivated meat genetically identical to “natural” meat to issues surrounding mixtures of cultivated meat and fake meat to the long standing problem of regional trade marks like champagne. All of these are in addition to previously “settled” disputes as companies capitalize on the vagueness of the law and weakness of precedents to relitigate issue after issue. Are battles around what can be called “meat” or “milk” really the best use of the government’s time?
The fundamental issue with this sort of “commercial lawfare” is its inefficiency: when companies find ways to compete outside of the market the consumer loses. The companies on top are not necessarily the ones with the best product and could instead be the ones with the most regulatory pull and/or explicit government support. So while some producers can easily generate sympathy in these labeling disputes – “cultivated meat isn’t really the same thing as real animal meat so of course they should have to display that on their packaging” – it must be understood these companies are not pushing for these regulations out of any goodness in their heart, they are trying to raise barriers to entry and protect their share of the respective markets.
Ultimately the government must come to understand that its most basic role in regulating food is to protect and benefit consumers, not special interest groups, entrenched companies or activists. But the government’s job to protect consumers does not mean it should be paternalistic: the government doesn’t need to protect us by limiting access to products deemed harmful. So often, especially regarding nutrition and food, making sound judgments on such issues is impossible for anyone, much less government regulators. Instead, the government’s job here must be descriptive. With food there is an information gap between producer and consumer that must be bridged if the market is to work safely and efficiently. Even then, the government still must be careful not to impose its own value judgments. In regulation, there is no virtue that should be praised more than cautiousness and none scorned more than heavy handedness.
Consumers should be able to trust the information given to them about the products they buy; they should not be told what they are allowed to buy or be discouraged by the government from buying the food that matches their preferences.
Further Reading:
Farming Abundance| Meat Me In The Middle By Owen Yinling
Farming Abundance | Food Regulations: Myths and Games By Richard Williams
The Hill | Can the FDA regulate away the perils of outdoor crops? by Richard Williams
Farming Abundance | Phony Demand and Underpopulation: Problems Plaguing American Farmers, By Matthew Yglesias
Mercatus Working Paper: Government Dietary Guidelines Uncertain Science Leads to Questionable Public Health Policy, By Edward Archer, Michael L. Marlow and Richard A. Williams