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Saturday, August 24, 2013

NOT MILK? CAN I CALL MY FROZEN VEGAN CREATION “ICE CREAM"?


Here is a little t.m.i. for you all (by the way, t.m.i. stands for “too much information” if it’s been awhile since you were around teen-speak): my mother likes to joke that after I was born she understood the meaning of the term, “snot-nosed kid.”  I know it will come as a shock to all of you that yours truly was ever disgusting, but we all have some color in our pasts and mine, apparently, was greenish yellow.  Eww!  Did I forget to tell you to put down your food before reading this?  So, um, moving right along I will report that, after the hassle of an elimination diet, we determined that the cause of this minor blip in my otherwise perfect nature was a sensitivity to dairy.



In the days of “milk does a body good” the only alternative to milk in your cereal was juice (can anyone say pineapple juice and corn flakes?) and a chalky calcium pill.  These days, though, there are so many products that simulate the dairy experience that my children refer to milk as “cow milk” to distinguish it from the many other types they drink.  And that, my friends, sums up the exact reason why the dairy industry petitioned the Food and Drug Administration (FDA) to prohibit anyone from using dairy terms when selling a non-dairy product.  They don’t want my kids thinking of anything other then their product in connection with the word “milk.”  The dairy industry argued that when a person buys something with the word “milk” or “cream” in it they expect that they are buying a dairy product.  And, basically, the FDA agrees.

The FDA puts out definitions for certain foods called, “standards of identity” and if a standard of identity has been established for a food item the ingredients of that food item must comply with the ingredient list in the regulation.  The idea here is to protect consumers’ expectations of what they are buying.  If the ad for the burrito says it has “steak" in it then that’s meat.  If it says “cheese," that’s mammal secretions.

And speaking of mammal secretions, did you know that humans are the only animal that drinks milk past infancy and also the only animal that drinks another animal’s milk?  That interesting tidbit popped up while I was researching this post, but it pales in comparison to this one:  (having been a lactating mammal myself in the not so distant past I should have known this, but somehow before writing this post I had ignored this, now quite obvious, fact:) in order for cows to make milk they have to have recently given birth to a calf.  In practical terms this means that if you want your cow to produce milk you have to make sure it is regularly getting pregnant.  And what do you do with all of those hungry cow babies?  Do you give them the milk G-d intends for them?  Hell no, that precious liquid is to be sold across the species divide to adult humans.

As you can imagine, the hungry cow baby story gets more gruesome, but let’s get back to your question and the topic of law:  Come up with some non-dairy name for your frozen nutty delight or risk facing the wrath of the FDA.  Just because they haven’t cited every “vegan ice cream” manufacturer for using dairy terms doesn’t mean they wont.  The dairy industry is right on your tail.  Just last year the National Milk Producer’s Foundation got three senators to write an official letter to the FDA complaining about its lack of enforcement on the labeling issue.  It goes something like this:  “We’ve got vegans crawling all over us!  They’re eating holes in our profit margins! Attack!  Attack!”

So do what some other manufactures have done and invent a new word like  “almondmilk” or switch out the “c” in “cream” for a “d” to make “dream” (actually, don’t do that see my post on copyright and trademark protection) or come up with something fabulously different like “Freeze Yo’ Nuts” (yes, you can pay me for that bit of genius) or simply call it nut sorbet.

This blog provides legal information, which is not the same as legal advice  the application of law to an individuals specific circumstances.  If you’re a small business looking for legal advice contact Roxanne at www.roxanneolson.com










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