The terms vegetarian and vegan are becoming more common. Initially, how to be a practicing vegetarian or vegan was the focus. Now, these terms are used to describe not only a lifestyle, but foods, cosmetics, and clothing. As these terms gain consumer interest, the government and plaintiff's bar are not far behind. We are beginning to see an uptick in questions about the regulatory requirements for "vegan" claims for food, cosmetic, and clothing products. We welcome such questions, because these types of claims can be tricky and often complicated/difficult to substantiate.
Like the term natural, the government has not defined the term vegan. That means the industry has defined it, and it has different meanings depending on who you ask. As a general matter, a vegan product is one that has no animal products or by-products, although, some see this term as also meaning that no ingredients in a product were tested on animals. To adequately substantiate a vegan claim, it may be of value to consider whether it should be tested to confirm that it is free of all animal matter. In addition to substantiating claims based on the product's ingredients, there is the matter of where such products are manufactured. There is a contamination risk for vegan products made in mixed-use facilities. Recalls suggest that this is happening more often than one might expect. Please see the following vegan product recalls:
- https://www.fda.gov/safety/recalls-market-withdrawals-safety-alerts/richelieu-foods-inc-wheeling-illinois-announcing-extension-voluntarily-recalling-1-lot-365-whole
- https://www.fda.gov/safety/recalls-market-withdrawals-safety-alerts/ono-llc-issues-allergy-alert-undeclared-milk-vegan-blueberry-muffin-lot-number-11923
Despite the lack of a common definition, companies claiming to offer vegan products are being challenged. For example, in 2022, FTC entered a settlement decree with Truly Organic Inc., in which the company agreed to pay $1.76 million to settle a complaint challenging organic and vegan advertising claims for its bath and beauty products. According to the FTC, Truly Organic advertised its products as organic and vegan; however, certain products contained no organic ingredients, had a combination of organic and non-organic ingredients, or contained non-vegan ingredients, like honey and lactose.
Given the ambiguity surrounding vegan product labeling and consumer expectations, what is a responsible company to do? At a minimum, take measures to ensure that your ingredients are vegan, and that cross-contamination does not occur during manufacture. Formulating a traceability plan and a system to verify that products are free of animal matter could help to decrease the likelihood that contaminated products are put on the market. Furthermore, companies can execute well-drafted quality agreements that clearly lay out supplier responsibility to provide vegan ingredients. Creating your own definition for the term vegan or sharing your company's view on vegan can be a mitigating factor if your vegan products are challenged.
Discuss with your lawyer the pros and cons of obtaining vegan certification. You should also stay on top of the most recent cases and regulatory guidance in the area. The Venable Regulatory and Compliance Team is here to help guide you through these complex advertising and labeling issues. Contact the authors with any questions about vegan or other claims you are making for food and cosmetic products.
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