It’s no secret that the pet food industry has become packed with options, particularly in North America as the most mature section of the market. It’s more difficult than ever to get a brand in front of consumer eyes for more than a moment, to say nothing of actually being able to engage pet owners and sway them to your products. At the same time, being able to do just that is something consumers are craving — they want to have a good feeling about the brands they interact with as much as the food that goes into their pets’ bowls. This complex dynamic means pet food marketers certainly have their work cut out for them these days, and one of the areas they must continue to be most careful involves how pet food products are labeled — both from a regulatory standpoint and from a consumer knowledge standpoint.
A top challenge in pet food labeling: Language
“Right now many regulators see unapproved ingredients, truthfulness and clarity to the consumer as top concerns when it comes to labeling,” said Austin Therrell, executive director of the Association of American Feed Control Officials (AAFCO). “AAFCO members strongly believe that the consumer should be aware and clear about the products they are purchasing, and the ingredients being used in those products should be legally approved and reviewed by [the U.S. Food and Drug Administration, FDA] for their intended purpose.”
Clarity sounds simple, but there are a lot of areas to consider when it comes to explaining a pet food product to consumers, as well as several places to misstep.
“The biggest challenge I run into time and time again in branding is navigating marketing’s desire to use more descriptive terms to identify/brand the subject product and legal’s desire on protectability of branding, typically from a trademark protection angle,” said Michael Annis, partner at law firm Husch Blackwell. “Descriptive terms are not registerable/protectable as trademarks unless your specific use of the subject descriptive term has acquired distinctiveness.”
Broader than that, there is the danger of being unintentionally misleading with your language, however unique you’re trying to be.
“As to other labeling terms and slogans that a company does not consider to be used in a trademark fashion, the potential for claims of false or misleading advertising can come into play,” said Annis. “The pet food industry is no stranger to false advertising claims, whether from a competitor challenging label statements or consumers asserting they were misled into making purchasing decisions. The marketer seems to always be trying to catch the wave of consumer sentiment and desire. If you are saying something to get the consumer’s attention and get them to spend money with you as opposed to a competitor, and principally based on what is important to that consumer, whether it is the concept of ‘sustainability’ or heath-driven statements and concepts (like ‘natural’), you are becoming a target. If you make a claim about your product, you need to have the ammo back it up with scientific substantiation.”
It's certainly a known challenge in the industry, and something companies tackle on a daily basis.
“Some AAFCO members have noticed that marketers/brands struggle to differentiate their products from others while not being misleading to consumers,” said Therrell. “Label claims must be both truthful and not misleading. Other regulators have also stated that the industry appears to struggle with product naming and making sure that products that contain named ingredients have the correct percentage of the ingredient in the formula.”
A long-time hurdle: Regulations
Of course, it’s not just marketing that needs to be aware of how a product is coming across. There are many regulations in terms of what can go on a pet food label, how the ingredients may be displayed, how the formulations needs to break out from a nutrient perspective and the information consumers must have access to on pet food packaging. In the U.S. in particular, this information can vary from state to state, making it more complex than it might otherwise be to ensure everything is above board in each place you want to sell your products.
“Pet food makers are careful to make sure the product descriptions and ingredients listed on the package are truthful and not misleading to customers,” said Dana Brooks, president and CEO of the Pet Food Institute. “The biggest issue is the inconsistency in state interpretation of AAFCO label definitions. Although many states adopt or reference AAFCO’s Model Bill for Pet and Specialty Pet Food, often the nuanced application or understanding of these model regulations by an individual state or individual regulator creates a barrier for compliance in one state, while the same product with the same packaging passes scrutiny in others. Unfortunately, this sometimes causes inconvenience for consumers as examples exist of regulators misinterpreting guidance and denying pet food registrations. This causes confusion for consumers and situations where their preferred pet food is unavailable.”
Of course the regulatory landscape is always changing, and it behooves companies to do their best to stay on top of things. In the pet food industry, there are plenty of ways to do just that.
“[A self-admitted selfish plug, but] brands should attend AAFCO meetings and workshops to stay on top of changes that are happening,” said Therrell. “Being aware of these changes and working with regulators and industry trade groups to make sure your voice is represented in the process will go a long way in making the most of your labeling strategy and taking advantage of new opportunities.”
Of course, if there is no regulatory definition, companies must be even more cautious in their strategies.
“It seems like the buzz word for the ‘20’s is ‘sustainable,’” said Annis. “You see it everywhere. Sustainable is a vague and ambiguous term capable of several, inconsistent meanings. That is what makes it dangerous in my eyes as a false advertising target. The term means something different to everyone. Some think it encompasses labor standards used by the manufacturer. Some others think the term is simply limited to whether the finished good is depleting resources that cannot be replaced (i.e., not sustainable).”
In the case of this current and evolving trend in the industry, due diligence will be key.
“I think folks need to be aware and thoughtful about dipping their toe into the ‘sustainable’ marketing game,” said Annis. “There are things you can do to try to protect yourself (defining the term as you are using it on label or web platforms, third-party certification, etc.), but until there is an agency regulatory definition that preempts possible false advertising claims, it is of concern to me in advising folks on its use.”
Litigation trends in the pet food and treat industries
