The Death of Imitation

Nigel Barrella*


Much recent research, development, and attention has been directed toward novel foods, especially the category of “alternative proteins”—alternatives to conventional animal products, made from plants, fungi, microbes, or cell cultures. With advances in food technology, some novel foods may closely (if not perfectly) replicate the sensory experience of conventional foods, and indeed many are formulated for that very purpose. As the relevant technology improves, it may be suggested that some novel foods should be deemed “imitation foods” under the Federal Food, Drug, and Cosmetic Act of 1938 (FDCA). Indeed, a recent citizen petition calls for such treatment of common dairy alternatives. This Article reviews the history of the FDCA’s “imitation” provision and the Food and Drug Administration’s (FDA) enforcement thereof, before analyzing its arguable applicability to novel foods of today and the future. It concludes that the imitation provision met an effective regulatory demise in 1973, and that any efforts to revive it in the context of modern novel foods would be legally unsound and unworkable.