Regulatory Updates: Keto, Plant-Based Milk, Truthful and Not Misleading

Regulatory Updates: Keto, Plant-Based Milk, Truthful and Not Misleading

September 22, 2021
Annette Maggi

By RDBA Executive Director Annette Maggi, MS, RDN, LD, FAND

The regulatory landscape is continually evolving and based on requests from you, our members, we are providing routine updates on labeling and regulatory topics that matter to your business. Here are updates on regulatory topics requested by members as well as trending topics.

Keto Claims. With a macro split of very low carbs, high protein, and a health dose of fats, keto claims primarily fall under USDA’s Food Safety and Inspection Services (FSIS), which oversees labeling on all products that contain meat (3% or more), poultry, and eggs. FSIS does not allow medical claims on meat, poultry, or eggs, and the agency considers keto to be a medical diet, given the original science on its relationship to epilepsy management. FSIS also considers a keto claim as an implied “low carb” nutrient content claim, which is also not allowed in USDA or FDA labeling regulations.

Plant-based Milk. Dating back to 2013, there has been debate in the industry over whether soy, almond, and a host of other plant-based milks should be allowed to call themselves “milk.”  With a technical FDA definition of milk as a fluid “obtained by the complete milking of one or more healthy cows,” the dairy industry has pushed back on others using this term. Suggestions are that these milk alternatives should use the term “beverage” or “drink.” There is precedent for this approach in the juice industry. Only 100% juice can be labeled as juice; beverages with less than this amount must qualify the term with “juice drink,” “juice cocktail” or similar language. Some states, including Maryland, Kentucky, and Wisconsin, have worked over the years to try to implement state regulations regarding plant-based milk alternative name labeling in the absence of federal regulations. As of now, this issue is still unresolved.

Truthful and Not Misleading. Because the federal regulatory agencies cannot possibly create laws and policies for every possible term on a label, they created a basic tenant of all labeling regulations, called truthful and not misleading. Essentially, this statement means that any language on a food label or in related labeling materials must be truthful and cannot mislead the consumer. A classic example is when fruit snacks, which include no real fruit, had characterized picture of fruit on their label. This was clearly misleading the consumer to believe there was actual fruit in the product. To be truthful, there must be recognized science by an authoritative body on a statement or a company must have specific consumer research to support a message. When working with marketing teams on product messaging, a strong tactic is always to ask what research marketing has to back up a story line.