Standards of Identity for Foods and Plant-Based Food Products

Standards of Identity for Foods and Plant-Based Food Products

January 18, 2018
Standards of Identity for Foods and Plant-Based Food Products
Foods are often subject to federal regulations or established
cacao products, dressings and flavorings, bakery and cereal
standards regarding how they are formulated or ingredients
products, frozen desserts, fats and oils, and prepared foods.
they may contain. Given this regulatory framework, as the
market for plant-based meat and milk alternatives has
Federal agencies promulgate standards of identity for foods
increased in recent years, so too have conflicts over the
through formal rulemaking. Additionally, members of the
shared use of terms used to market these foods. To address
public or industry stakeholders may submit petitions to the
this conflict, the Dairy Pride Act (H.R. 778/S. 130) would
relevant agencies to request new standards that may
deem a food to be misbranded and in violation of existing
include, for example, requests to establish a common name
food safety laws if it is labeled with market terms
or standard of identity for a food or color additive. Federal
commonly associated with a dairy food—such as milk or
agencies might also adopt international standards, including
cheese—but does not meet established definitions in federal
those established by the Codex Alimentarius Commission
regulations or established product standards. Similar
or other standard-setting organizations. In addition, each
concerns have involved the use of other terms, such as
state has the authority to set standards of identity for foods
mayonnaise, which is generally associated with egg-based
marketed within the state.
products and ingredients.
Addressing Food Ingredient Concerns
Standards of Identity for Food
Congress is said to have taken action to establish
Standards of identity establish a common name and set of
standards of identity for foods in response to
content requirements for a food product. They refer to
concerns involving a product called Bred-Spred.
Bred-Spred was marketed and packaged in the
requirements that define the composition of food,
1920s as a jelly-like product that contained no fruit
prescribing both mandatory and optional ingredients in a
and was instead made of coal tar, artificial pectin,
product. They may specify the amount of each ingredient
artificial flavors, and grass seeds. Because Bred-
the food must contain or fix the relative proportion of each
Spred had a distinctive name (and did not call itself
ingredient and may also prescribe a specific method of
jam or jelly), manufacturers had legal protection from
production. In establishing a common name for a food,
misbranding provisions in U.S. food safety laws.
standards of identity are intended to help consumers. If the
appropriate term is not used or if the content requirement is
Congress first authorized the promulgation of standards of
not met, the food is considered misbranded and in violation
identity for foods in 1938 as part of the Federal Food, Drug,
of U.S. food safety laws. Standards do not address quality
and Cosmetic Act (FFDCA, 21 U.S.C. §301 et seq.). Under
issues, such as inadvertent adulteration, or whether the item
this statute, FDA is authorized to establish regulations “for
meets the consumer’s individual nutritional needs.
any food, ... a reasonable definition and standard of identity,
a reasonable standard of quality, and reasonable standards
Pursuant to statutory directives, standards of identity are
of fill” of the container. FDA standards of identity cover
established by regulations that determine what a food
mostly processed and value-added foods for a wide range of
product must contain to be marketed under a certain name.
FDA-regulated food products.
At the federal level, three agencies have the authority to set
requirements for foods entering interstate commerce:
The Federal Meat Inspection Act (FMIA) of 1906 (21
1. Food and Drug Administration (FDA). Covering 300
U.S.C. 601 et seq.) and the Poultry Products Inspection Act
identity standards in 20 categories of food, not including
(PPIA) of 1957 (21 U.S.C. 451 et seq.), as amended, also
meat and poultry products (21 C.F.R. Parts 130-169).
broadly provide for USDA to establish voluntary standards
for meat and poultry products (FMIA, 21 U.S.C. §607(c);
2. U.S. Department of Agriculture (USDA) Food Safety
and PPIA, 21 U.S.C. §457(b)). Both FMIA and PPIA direct
and Inspection Service. Covering most meat (9 C.F.R.
USDA to establish “definitions and standards of identity or
Part 319) and poultry (9 C.F.R. Parts 381.155-381.174)
composition” for meat and poultry products. Standards of
products.
identity cover a wide range of raw, cooked, cured, and
3. Alcohol and Tobacco Tax and Trade Bureau (TTB).
processed meat and poultry products and ingredients for
Covering malt beverages and distilled spirits, such as
USDA-regulated food products.
vodka, whiskeys, gin, brandy, and flavored liqueurs (27
C.F.R. Parts 5.22, 5.27, and 5.35).
Although part of U.S. food safety laws, identity standards
Foods with standards of identity include many processed
are not specifically intended to address potential safety or
and value-added products. These include milk and dairy
fraud concerns. However, food quality and grading product
products, meat and luncheon products, poultry and egg
benchmarks for certain foods and food ingredients provide
products, canned and frozen fish and shellfish, sweeteners
a way for federal agencies to protect consumers not only
and syrups, canned and frozen fruits and vegetables, jellies
from contaminated products but also from economic fraud.
and preserves, beverages and fruit juices, nut products,
FFDCA directs FDA to establish definitions and standards
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Standards of Identity for Foods and Plant-Based Food Products
for food to “promote honesty and fair dealings in the
non-dairy cheese (e.g., cashew cheese), yogurt (e.g.,
interest of consumers” (21 U.S.C. §341).
coconut yogurt), frozen desserts, butters, spreads, dips,
dressings, and sour cream. Butter alternatives do not
Accordingly, standards of identity enable federal regulators
include margarines that are not specifically marketed as
to take enforcement action against food fraud—that is, the
butter replacements. Meat and egg product alternatives
act of defrauding buyers of food and food ingredients for
include branded prepared meals and plant-based spreads.
economic gain, whether the buyers are consumers or food
manufacturers, retailers, and importers. Foods and food
Conflicts Involving Use of Food Terms
ingredients commonly associated with food fraud include
For marketing purposes, plant-based foods often use terms
olive oil, fish, honey, milk and dairy products, meat
associated with animal-based products—for example, milk
products, grain-based foods, fruit juices, wine and alcoholic
when marketing soymilk or mayo for non-egg alternatives.
beverages, organic foods, spices, coffee, tea, and some
Some producers of dairy and egg products claim that the
highly processed foods. (For other related information, see
use of these terms may violate existing standards of identity
CRS Report R43358, Food Fraud and “Economically
for certain foods. They also maintain that these products are
Motivated Adulteration” of Food and Food Ingredients.)
imitation products. These producers claim that, based on
these allegations, such dairy and egg product alternatives
Combating food fraud has been the goal of previous
are misbranded within the meaning of the FFDCA and
legislation involving identity standards. For example, the
therefore in violation of U.S. food safety laws. Under the
2014 farm bill (P.L. 113-79, §10012) required USDA to
FFDCA, a food is misbranded when the product’s label is
submit a report to FDA regarding federal standards for
“false or misleading in any particular,” “is offered for sale
honey. Another debated provision would have established
under the name of another food,” or “is an imitation of
tighter import controls for olive oil in an effort to enforce
another food,” unless the product’s label indicates that it is
quality standards for those products. Although the provision
an imitation (Section 403 of FFDCA, 21 U.S.C. §343).
was included in an early version of the House farm bill, it
was removed by amendment during floor debate.
The Dairy Pride Act (H.R. 778/S. 130) would amend
Section 403 to emphasize that products marketed using
Figure 1. Plant-Based Product Sales, 2016
terms for which a standard of identity exists, but that do not
meet that standard, are “misbranded” and subject to FDA
enforcement action. The Dairy Pride Act would further
require FDA to develop enforcement guidance to these
misbranded foods and could effectively prohibit plant-based
foods from being labeled using words such as milk, cheese,
or yogurt. Some plant-based food industry groups claim
that this could also prohibit the use of certain modifiers—
such as soy and dairy-free—in the labeling of plant-based
dairy alternatives. Report language for FY2018 agriculture
appropriations (H-Rept. 115-232) would direct FDA to
develop a dairy specific standard of identify and guidance.

Source: CRS from GFI and PBFA data (reported by Nielsen).
The Dairy Pride Act is supported by the U.S. dairy industry,
which has, since the 1990s, promoted efforts to rein in the
Market for Plant-Based Foods
use of terms in the marketing of non-dairy alternatives.
Plant-based foods refer to products derived from plants
Although FDA has continued to monitor the use of such
including vegetables, whole grains, legumes, and fruits with
terms on product labels, the dairy industry contends that it
few or no animal-based ingredients. Often such foods
has failed to enforce violations of established standards of
exclude meat, poultry, eggs, dairy, and seafood ingredients
identity for milk claims.
and are intended to replace animal products in foods. Plant-
The plant-based food industry, on the other hand, wants
based foods represent a small but growing part of the U.S.
clarification with respect to terms for which there exists a
food industry. The Plant Based Foods Association (PBFA)
standard of identity under FDA’s regulations. GFI has
and the Good Food Institute (GFI) report that the retail
formally petitioned FDA to allow for the use of “clarifying
market for plant-based foods totaled $3.1 billion in sales in
words or phrases before the common or usual name of a
2016 (Figure 1), up 8% from 2015. These estimates are
food to characterize the main ingredient or component” or
based on data commissioned from Nielsen, a leading retail
to indicate its absence. In an August 2017 response, FDA
sales research company. These data cover most market
stated that it was reviewing GFI’s petition but was not
outlets including grocery stores, club stores, mass
currently able to respond given other competing priorities.
marketers, commissaries, and retail stores.
The plant-based food industry has also initiated a series of
Major plant-based food categories include meat and milk
court cases regarding the use of certain marketing terms,
alternatives, other dairy alternatives, egg substitutes,
mostly involving milk and dairy products. In a recent case
mayonnaise, tofu and tempeh, and prepared meatless meals.
involving almond milk, the court referred the case back to
Milk and other dairy alternatives accounted for 72% of total
FDA, which it found to have primary jurisdiction.
plant-based sales in 2016 (Figure 1). Milk alternatives
Renée Johnson, Specialist in Agricultural Policy
include soy, almond, hemp, rice, and pea non-dairy
beverages and creamers. Other dairy alternatives include
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Standards of Identity for Foods and Plant-Based Food Products

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