From bugs to drugs, the food industry's regulatory future on new ingredients is looking murky.
Lawyers and former regulators spoke on a panel at the Prime Label Consultants' Food Label Conference on Monday about the growth of the latest innovations in food ingredients and technology, including edible insects, CBD and cell-cultured meat. The experts discussed the factors igniting these trends, current regulatory gray areas and how government agencies could reform these areas in the future.
One of the hottest topics in the food industry today is CBD. There are still many regulatory questions around the ingredient in foods and beverages, but the recent passage of the farm bill has given producers a confidence boost and provided more clarity for hemp and CBD-infused products.
Jonathan Havens, a partner at Saul Ewing Arnstein & Lehr and a former regulatory counsel for the U.S. Food and Drug Administration, said at the panel that CBD is increasingly appearing in the food industry.
"People don’t know exactly what it means, but they know that their customers want it in everything," Havens said.
A recent study conducted by High Yield Insights found 40% of American consumers who are 21 years of age or older would try CBD. Smaller food companies have already jumped on the opportunity by putting products on the market with CBD, while Big Food is looking for opportunities and keeping an eye on the trend.
"People don’t know exactly what (CBD) means, but they know that their customers want it in everything."
Partner, Saul Ewing Arnstein & Lehr
But CBD is still considered illegal by the FDA. The agency is having a public hearing in May and Havens said that could show more of what is to come for the ingredient in the future. However, there are other ways that CBD regulation could come sooner. Congress could act, he said, or the FDA could look at a hybrid approach, regulating low levels of CBD in food and high levels of CBD in pharmaceuticals.
"Clients always say to me, 'We just really want FDA to clarify its position on CBD.' And I say, 'No, you want FDA to change its position on CBD because clarifying it would mean digging their heels in and saying it is still illegal, that you can't put it in food or dietary supplements,' " he said.
There are some safer ways to get CBD products into the market today by sourcing and testing the ingredient extensively and then not making health claims on the product, he said. FDA has only issued warning letters to companies that are making aggressive claims on their products, Havens said.
"There is a way to do it now, not totally risk free, but there are ways to market these products," he said.
Beetles, grasshoppers, locusts and crickets
CBD isn't the only ingredient that has become a hot button issue in the food space. The global edible insects market is predicted to surpass $522 million by 2023, with beetles, grasshoppers, locusts and crickets comprising much of the growth, according to Global Market Insights.
Ricardo Carvajal, a director at Hyman, Phelps & McNamara and a former associate chief counsel at FDA, said at the conference that edible insects are a very good source of protein and consume a lot less resources than a conventional animal based protein. Those factors appeal to the growing consumer interest in proteins and sustainable alternatives.
"Those two things have been the primary driving force for early adopters in this space," he said. "That said, there are some challenges. I think the top challenge today, as it has been for decades that this has periodically come up, is consumer aversion."
Carvajal said not all U.S. consumers are willing to try edible bugs and there are some potential safety issues with certain insect species. He said some insects are related to shellfish so there could be potential for allergic reactions, which is being handled through labeling.
There isn't a regulatory framework that is specific to edible insects. Carvajal said there doesn't have to be since it can be regulated by the Federal Food, Drug and Cosmetic Act.
But what has thrown regulators a curve ball is cell-cultured meat. Just last month, the U.S. Agriculture Department and the FDA issued a formal agreement for the regulators to jointly oversee cell-cultured meat. However, there is still much to figure out.
"All in all, cell-based meat is set to stake out its place in the American marketplace and the regulatory conversation is evolving quite quickly, so quickly that many states have passed laws or have proposed bills that would limit terms on beef."
Special counsel, Wiley Rein
Brian Sylvester, special counsel at Wiley Rein and a former regulatory lawyer at USDA, said at the panel that people in the space will be looking for additional clarification on how the government plans to regulate and inspect the sector, settle on terminology and offer more opportunities for stakeholder engagement. Then as production scales up, Sylvester said the next challenge is on the communication front.
Although a survey last year found 40% of American consumers are willing to give lab-grown meat a try, Sylvester said that "a big question is whether consumers will actually accept this." And as the FDA and the USDA work on regulation, more states are shaping the conversation and landscape by banning the labeling of products that are not from a slaughtered animal like meat, targeting both plant-based and cell-cultured meat.
"Cell-based meat is set to stake out its place in the American marketplace and the regulatory conversation is evolving quite quickly, so quickly that many states have passed laws or have proposed bills that would limit terms on beef," he said.
Sylvester said there is a lot of uncertainty, but producers in the space are focused on developing cell-cultured meat products that have the same nutritional value, mouth feel and taste as its conventionally grown counterpart.
"A critical point worth emphasizing is that the products harvested from cell cultures are expected to be exactly the same as those harvested from the animal," he said. "The only difference is how they are made."