Food technology has come a long way over the past several decades. Great strides have been made in developing substitutes for meat, dairy, and gluten containing flours. We now have “milk” made from oats and almonds, meat substitutes made from various vegetable based ingredients, and gluten free bakery products made from amaranth, millet, sorghum and, would you believe, cauliflower. In an article in the New York Times, “The Ascension of Cauliflower”, the author recounts how food companies are satisfying the market for low-carb, gluten-free foods by using vegetables such as cauliflower as substitutes for flour, rice and other simple carbs. For example, a relatively new company, Caulipower LLC , has earned millions by selling frozen cauliflower pizzas and baking mix. Other companies are chopping and pulverizing cauliflower for use as a rice substitute. 

The New York Times reported that

The cauliflower trend is pervasive, said Jordan Rost, the vice president of consumer insights for Nielsen. We’re seeing it in everything from cream cheese to baby food. Products that contain cauliflower are experiencing faster growth in sales their overall categories. It’s driving growth across all foods.

Major food brands such as Trader Joe’s, Whole Foods, Birdseye and Cascadian Farm have introduced their own riced cauliflower products. So what does this have to do with intellectual property? According to the New York Times, lawmakers in 2018 wrote to the Food and Drug Administration requesting that a “standard of identity” for rice be created. A standard of identity is a formal definition, which would essentially bar other companies from calling products “rice” unless the product adhered to the definition or “standard of identity.”

USA Rice, the rice-growers trade association, has been at the forefront of confronting “rice pretenders.” In 2019, the president and CEO of Rice USA testified before the FDA:

These standards exist to protect against consumer deception, said Ward in her testimony. The current use of the common or usual name rice has created confusion in the marketplace.  Rice is a grain, not a shape.  We recommend that these guidelines be adapted into formal standards of identity in the United States to meet consumer expectations from a nutritional and culinary standpoint, as well as allow for innovation.

Of course, avoiding “confusion in the marketplace” is the underlying rationale for trademark law and, in a sense, standardized definitions of products, even though they may be generic, such as rice or milk, have the same goal. For example, the FDA has issued a standard of identity for milk, which reads: “the lacteal secretion obtained by the complete milking of one or more healthy cows.” According to one source, it is rarely enforced so despite the fact that almonds, soybeans, and oats don’t lactate, there are numerous brands of almond milk, soy milk and oak milk. 

Progress in milk labeling may be impetus for progress on accurate rice labeling and, perhaps, a standard of identity for rice. In the meantime, some states, such as Arkansas and Louisiana have taken measures to standardize the identity of “rice” in brand products that pretend to be rice.  These actions are not without controversy. The Plant Based Foods Association has come out against USA Rice’s position, arguing that consumers know exactly what they are buying and that naming bans “are inventing consumer concerns to protect traditional agriculture industries like rice.” A reporter for the Pacific Standard has observed:

There’s some evidence that American consumers misinterpret food labels, and that packaging measures fail to improve health across classes. Choosing between cauliflower and rice is not as significant a health decision as that of milk or meat substitutes, nor can personal choice significantly mitigate agriculture’s carbon footprint. But if the rice industry has its way, this debate will play out in legislation instead of the frozen food aisle.

That’s exactly what’s happening with respect to the Dairy Pride Act, which seeks to step up enforcement of identity standards with respect to milk products. The bill was introduced in January 2017 and referred to the Committee on Health, Education, Labor, and Pensions. Given the slow pace of the legislative process, don’t expect much progress soon. As for rice, no similar legislation is pending. We will keep you informed.

— Adam G. Garson, Esq.