Legal-Ease: Defining French dressing, milk and meat

Language seeks to communicate feelings, emotions and things into a comprehensible set of standards composed of words that allow people to effectively communicate about those things that are not words. In other words, words matter.

Words, the importance of using the proper words and whether words change the things the words describe is often captured in the phrase, “Does a rose by any other name still look and smell like a rose?”

A big name change in the food world was announced earlier this month. The Food and Drug Administration changed a rule that had been in effect for over 70 years regarding French dressing’s definition.

In 1950, the FDA decided that to call a salad dressing “French dressing,” the dressing needed to have certain characteristics, including being composed of at least 35% vegetable oil.

Of course, since 1950, all kinds of deviations in French dressing have been introduced into the marketplace. Every new dressing deviation tried to dance around using the word “French” to describe the dressing, unless the dressing satisfied the definition laid out in 1950, even though that definition was not literally legally binding in all contexts.

The idea of needing a legal/standard/consistent definition of French dressing and other foods (like milk) is that different foods that are described using the same name strongly hint that the foods are the same. When foods are significantly different but use the same name, consumers could be misled and therefore harmed.

Although the FDA finally quit defining French dressing, the FDA has recently looked at defining other foods’ names in order to avoid consumer confusion. Milk has been the most popular product to face such consideration over the last few years. Almond milk, soy milk and oat milk do not come from animals and are certainly not products that come from animal lactation. However, those products nevertheless use the name “milk.”

In dealing with the milk definition arguments a couple years ago, a federal court determined that (without some specific law that prohibits using certain words to describe certain food) whether some food product could describe itself by a name used by another food product was governed by whether consumers are “likely to be deceived.” In that particular case, a producer of almond milk was allowed to continue to call its product almond milk despite the product not being dairy or even animal based.

In the last couple years, the struggle and arguments over food names has spilled over into meat and plat-based food products that are marketed as “meat.” At least to this point in time, plant-based food that is similar to meat (in texture and taste) has been relatively safe from allegations of misappropriating the word “meat,” because those food products have been pretty clearly identified and marketed as being meat-like or meat-replacement.

At any point in time, either Congress or the FDA can create definitions for foods, which legal definitions are usually constitutional if the definitions are intended to and actual do avoid legitimate, potential and significant confusion for consumers.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.