Just as people are asking the government to resurrect a Progressive-Era
stance on antitrust and consumer protection in the technology sector, we
should ask the government to take on consumer protection efforts in
agriculture. The growth of technology-driven food production for synthetic
dairy, meat, and other foods, and for potential food substitutes, is part of a
global market expected to reach $162 billion in sales by 2030. Conflicts over
whether a new product created in a lab or engineered to be a substitute can
be called a “milk,” “meat,” or “grain” will persist and are likely to grow.
This Article uses the conflict between the multibillion-dollar milk and plantbased
beverage (PBB) industries as a lens to show how society can support
both food production innovation and consumer protection.
New food production and marketing can improve food security, but it
can also foster misinformation and create public harm. For example, PBB
“milks” fail to meet the legal standard for milk, but the PBB industry wants
to call its products “milk” to reach the dairy-consuming market. At the same
time, medical research shows infants, toddlers, adolescents, and adults are
harmed by confusion created when the PBB industry uses the term milk.
Consumers are unaware that PBBs often lack the same nutrition as milk and
so are not receiving the nutrition they need. Similar issues are appearing in
other substitute and synthetic food sectors. Put simply, food innovation and
marketing can often clash with public health and consumer protection.
The current caselaw offers unsatisfying analysis of and solutions for the
problem. Caselaw to date is thin in part because the FDA’s tests for harm are
underdeveloped and undertheorized. This Article fills this gap by developing
a new test, the Likelihood of Generic Confusion Test, to address when
advertising and branding use of a generic term may harm the public. The Test
draws on several aspects of trademark law, including the deceptively
misdescriptive marks test, the likelihood of confusion test, and the genericism
doctrine. By combining these doctrines, the Test offers a path to allowing
innovative food production and creative marketing to thrive while also
protecting consumers from unnecessary and harmful business practices.
