This article is written by Riya Shah, a student of Pravin Gandhi College of Law(Mumbai).

What is the meaning of the concept of Veganism?

Veganism is a way of living. There is no universally accepted, official definition of the word or the concept of ‘Vegan.’ However, Veganism encompasses non-consumption of animal food such as meat, fish and others, dairy products, eggs or animal-derived materials in different products (for example make-up products) which are tested on animals. One who follows a vegan lifestyle also avoids going to places where animals are used as a source of entertainment.

The concept and purpose of Veganism is quite enriching. It is important to note that India is one of the leading and largest exporters of beef in the world. One considers the way cows and other mammals receive treatment at sheds, in order to obtain the milk from them, which is primarily essential for their calves and babies. Other animals become a source of entertainment at places such as zoo, where they are treated in an ill-mannered fashion. The whole idea behind this concept is to provide an alternative in daily consumption of food or beverages. Instead of treating animals cruelly, an alternative served is plant-based milk, which is not only environmentally sound but also rich in nutrients such as protein.

These plant-based products include, but are not limited to, Almond milk, Coconut milk, Soy milk and Oat milk. Vegan products are not only restricted to such plant-based milk substitutes. Other products include vegan cheese, vegan milk powder, vegan cocoa powder, vegan butter, vegan cheese and many others which are made from seeds such as sesame, sunflower or nuts such as cashew, pine nut or other such plant-based ingredients. These products are environmentally sound as lesser quantity of water is used in the manufacturing process as opposed to the gallons of water used in manufacturing dairy products, plant-based industries are more hygienic than dairy based industries, non-dairy products are not exposed to highly toxic gases namely methane, as emitted by cows and animal cruelty is avoided in its entirety.

Draft Regulation by the Food Safety and Standards Authority of India

The Food Safety and Standards Authority of India (hereinafter referred to as the “FSSAI”), has introduced a draft regulation namely, FSSAI (Food Products Standards and Food Additives) Amendment Regulations, 2020 (hereinafter referred to as the “Regulation”). The excerpts of the said Regulation have been highlighted hereunder: 

• This Regulation propounds to define milk or milk products and has been termed as an ‘Analogue.’ This definition is as mentioned below:

“Analogue in the dairy context means an imitation product that is designed or structured to mimic, or offered as an alternative/replacement to, a milk or milk product or composite milk product as defined in these regulations by partial or full substitution of selected milk components with other components from non-dairy sources, or prepared by using non-dairy ingredient(s) exclusively or in combination with dairy ingredients.” 

• Further, it has been provided that dairy term, phonetically similar or spell alike terms (related to milk or milk products) shall not be used on the nomenclature of such products.
• The name of the dairy ingredient shall be indicated in the list of ingredients, provided it has been used during the manufacturing of the product. 
• It is also mandatory to label such Analogue products as ‘THIS IS NOT A DAIRY PRODUCT.’ 

Observation

How can Vegan milk or milk products be defined as ‘Imitation products’ or not considered as milk?

It is pertinent to note that Soy milk has been consistently used since 18th-19th century. Soy milk” entered the English language (as “soy-bean milk”) in an 1897 USDA report. The first non-dairy milk—Almond milk, was created in the Levant around the 13th century. 

The idea is to provide an alternative to dairy and meat products, in order to avoid animal cruelty. The intention of the sellers for selling the vegan products to the end-users is to sell such plant-based products as an option and not as ‘imitation’ or ‘Analogue’ products. Such misleading implications will not only lead to confusion amongst the consumers as to the utility of the plant-based alternatives but also cause chaos amongst the manufacturers/retailers or other sellers in the market as there are no prescribed standards to rename such products or the ingredients of the products. 

The plant-based milk products in no manner mislead the consumers. The ingredients are always reflected on the labels of the products and labeling them as ‘THIS IS NOT A DAIRY PRODUCT,’ according to this draft Regulation, is sufficient to appeal to the consumers that such products are vegan or plant-based and are distinguished from dairy products. 

Further, the provision of not using alike/phonetically similar to or dairy terms of the milk or milk products stretches the bounds of credulity. There are no other standards stipulated for terming such ingredients on the products. This may subsequently lead to war in trademark or other intellectual property rights, as the sellers of the non-dairy products will be urged to be creative to rename their vegan products and simultaneously meet with the challenges of not renaming the ingredients phonetically similar to or synonymous with the dairy terms. Such sellers will not only be compelled to maintain their identity of the products but also be economically obligated to incur more costs behind the marketing and endorsements of such products to maintain their distinct stature.

Plant-based products in developed nations such as the United States of America or United Kingdom are not termed as ‘Analogue’ or defined as ‘imitation.’ Their products and the labeling of such products comply with the applicable food laws and standards. However, words such as ‘dairy-free,’ ‘lactose-free’ or ‘vegan’ are mirrored on their products. 

In Miyoko’s Kitchen INC vs. Karen Ross & Stephen Beam, the United States District Court of Northern District of California upheld that “Miyoko’s decision to label its product as “Vegan butter” is entitled to First Amendment protection.” The said case was filed against Miyoko’s Kitchen by the California Department of Food and Agriculture, in order to drop the word ‘butter’ from its vegan products. 

Can products such as ‘Almond milk’ be termed as ‘Imitation milk’?

In the case of Painter vs. Blue Diamond Growers, the Plaintiff alleged that use of the word ‘milk’ in these non-dairy products along with the Defendant’s advertising campaign, misleads consumers into thinking that Defendant’s  beverages are as nutritional as the dairy milk. The Plaintiff further alleged that calling such products ‘milk,’ the Defendant is deceiving the consumers about the nature, quality and/or the ingredients used in such products. Furthermore, the Plaintiff contended that the Defendant must either label their product as ‘imitation milk’ or cease using the term ‘milk’ in their plant-based products. The judge presiding over the said case, Justice Stephen V. Wilson, upheld that “A reasonable consumer, indeed even an unsophisticated consumer, would not assume that two distinct products have the same nutritional content.”

It was noted that Blue Diamond’s Almond milk product are nutritionally equivalent to the dairy milk based on their package labels or advertising. Both the products, that is, Almond milk as well as the dairy milk have different nutritional values. Therefore, Almond milk cannot be considered nutritionally inferior to that of the dairy products. Hence, the Plaintiff’s complaint failed for two reasons: (A) to the extent the complaint seeks to challenge Defendant’s labelling practices, which is preempted by the Food Drug and Cosmetic Act, and (B) Plaintiff fails to plausibly allege that a reasonable consumer is likely to be deceived. 

Legal consequences of the Regulation

It is important to note that if this draft Regulation receives the assent in future, there are several legal consequences that may be faced by the sellers and the consumers in the market. These have been enumerated as follows:

• • It is pertinent to note that the said Regulation may invite a lot of unnecessary trademark infringement suits in the courts of law. There are no specific standards with regards to labelling of the nomenclature of such plant-based products or their ingredients. Mere specification that such products shall be defined as ‘imitation’ or ‘analogue’ or not using ‘phonetically similar/alike terms,’ to that of the ingredients of the dairy products seems to attract a lot of ambiguity. It will lead the sellers to procure a logo or trademark in order to stand out in the market. In order to maintain this identity and be highly competitive in maintaining the stature, a lot of money may potentially be invested by the sellers behind marketing, advertising, endorsing and campaigning of such products.
  • Thereafter, the mid-level sellers or the sole proprietors may use the logos and trademark of the popularly known sellers to sell their products under the brand name or trademark of such well-known sellers.
  • The ingredients used in such products have no specific labelling requirements, as previously prescribed by the FSSAI. This will cause a lot of chaos and confusion not only amongst the sellers of such products but also the consumers in the market. 
  • The Sellers of such products will have to incur inexplicable costs relating to adopting different trademarks of the products as well as the ingredients reflected behind the products. Immense amount of caution will also have to be undertaken by the sellers in order to refrain themselves from using ‘phonetically similar/alike terms’ with the ingredients of the dairy products as well as the ingredients of the plant-based products, subsequently sold by a competitor.
  • The FSSAI may devise or prescribe a logo for the plant-based products, to differentiate such products from the milk or milk products. Such mandatory implementation of the logo under the labelling requirements will not only save the sellers from the garb of trademark infringement suits but also avoid clutter amongst the consumers, who are willing to buy such plant-based products.

Conclusion

Did you know? Soy Milk and Tofu have been previously standardized by the FSSAI under the Food Safety and Standards (Food Products Standards and Food Additives) Second Amendment Regulations, 2020. Soy milk has been referred to as “Soy beverage.” It has been divided into three categories namely, Plain Soybean beverage, Composite or mixed or flavored soybean beverages and Soybean – based beverages. Soy beverage is defined as “milky liquid products prepared by adding optional ingredients.” Tofu is made by “coagulating milky liquid obtained from soybean, and then pressing into soft white blocks.” 

Does this indicate that such non-dairy products standardized by the FSSAI will have to be re-standardized and re-branded? Is the word “Milk” going to be subsequently substituted by the FSSAI, in the near future? The word ‘milk’ has been defined by Merriam Webster as “a food product produced from seeds or fruit that resembles and is used similarly to cow’s milk” in the list of definitions for milk. The Cambridge dictionary includes the following definition of milk, among others: “the white liquid produced by some plants and trees”. Most other reputed dictionaries also include plants as a source of milk in their definitions of milk.

Furthermore, the implication of ‘THIS IS NOT A DAIRY PRODUCT’ as a tagline is correct and appropriate, which not only aids in specifying the said tagline but also educates consumers about the particular non-dairy product.

The logic behind terming such products as ‘Analogue’ or ‘imitation’ tantamount to consumers believing that flourless chocolate cake contains flour or e-books are made out of paper!

The Regulation shall be amended in a way which may potentially not restrict or prohibit the dairy industry as well as the plant-based industry. Terminologies such as ‘dairy-free,’ ‘cruelty-free,’ ‘vegan’ or ‘plant-based’ support the motive of following a vegan lifestyle. The FSSAI has invited individuals/associations/groups for suggestions and observations with regards to the said Regulation, which shall be addressed to the Chief Executive Officer of the FSSAI. Such suggestions/observations shall be made on or before October 4, 2020 and presented in the format as prescribed by the FSSAI. You may also mail the FSSAI to [email protected]. 

To concur, is it time to rename “Soy Milk” as “Soy nutrient-rich liquid food not produced in the mammary glands of mammals”? 

I wonder what Butter-milk will be named as!

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: