Perfect Day has urged a court in the District of Columbia to toss a lawsuit alleging it is misleading consumers about its animal-free dairy products.
The complaint* focuses on beta-lactoglobulin, a whey protein (brand name ‘ProFerm’) that Perfect Day produces from a genetically engineered strain of the fungus Trichoderma reesei. The ingredient is the subject of an FDA no questions letter issued in 2020 affirming its GRAS (Generally Recognized as Safe) status.
In the lawsuit, plaintiffs the Organic Consumers Association and Toxin Free USA say tests conducted by The Health Research Institute show that ProFerm contains a significant amount of residual fungal protein from the host microbe.
While Perfect Day’s GRAS notification claims that tests indicate that ProFerm contains up to 6.7% fungal protein, the plaintiffs allege that “86.6% of the product consists of fungal proteins,” a figure some industry sources says seems unlikely given that such a high fungal protein content would have an obvious sensory impact.
They further allege that “Perfect Day markets ProFerm as safe, environmentally friendly, identical to cow-derived whey protein, capable of creating milk identical to cow’s milk—including its nutritional profile—and free from genetically modified organisms. The reality is markedly different.”
The plaintiffs say they are not mounting a class action or seeking damages but seek declaratory relief and an injunction to “stop the deceptive marketing of ProFerm,” find Perfect Day “in violation of the D.C. Consumer Protection Procedures Act (CPPA),” and to cover their legal costs.
Motion to dismiss
In a motion to dismiss the lawsuit, which is being followed closely by players in the precision fermentation space, Perfect Day argues that the court should dismiss the complaint for lack of personal jurisdiction over Perfect Day and/or for failure to state a claim upon which relief can be granted. It does not—at this stage—address the claims about the levels of residual fungal protein in its products.
“Plaintiffs do not allege a D.C. consumer has been injured by an alleged CPPA violation by Perfect Day,” notes Perfect Day. Meanwhile, the milks the complaint list as comparator products to ‘Bored Cow’ milks containing Perfect Day’s protein are either not sold in D.C. or are not subject to FDA’s jurisdiction, claims Perfect Day.
“Since 2016, OCA has filed no less than 23 other similar lawsuits in this Court. OCA has not secured an injunction or any other type of judgment in any of those suits. Since 2018, Toxin Free USA has filed no less than 13 other similar lawsuits in this Court. Toxin Free USA has not secured an injunction or any other type of judgment in any of those suits.”
Finally, adds Perfect Day, “No reasonable consumer would believe that Perfect Day’s alleged conduct constitutes an unfair trade practice.”
Animal-free whey protein
Perfect Day did not respond to requests for comment from AgFunderNews when the lawsuit was first filed, but has frequently told reporters that tits host microbe is “completely filtered out” of the final beta lactoglobulin product, telling Green Queen last year that it questioned the “methods and materials” used by HRI to test samples of Bored Cow (an ‘animal-free’ milk containing Perfect Day’s protein).
In its GRAS notification to the FDA, Perfect Day notes that the Food Allergy and Resource Program (FARRP) at the University of Nebraska-Lincoln determined that the beta lactoglobulin samples it tested did not contain “sufficient residual fungal proteins to present allergenicity concerns.”
According to its GRAS notice, Perfect Day conducted a literature review and “found no reports that implicate T. reesei with human, animal, or plant disease or allergenicity among healthy adults.”
Rebecca Cross, founding partner at law firm Greenfare Law, told AgFunderNews: “This is the first lawsuit I’ve seen targeting a precision-fermented animal-free protein, but it’s not surprising. Any time a company challenges conventional food categories, it faces resistance from food groups tied to more traditional narratives.”
She added: “Given Perfect Day’s transparency’s and the Organic Consumers Association’s persistent opposition to food technology, this lawsuit reads more like a challenge to the category itself than a response to consumer deception. Regardless, it illustrates the tightrope companies walk when naming alternative ingredients.”
Further reading:
Guest article: The Perfect Day lawsuit… an ingredient naming case in disguise?
Perfect Day hit with lawsuit from organic, anti-GMO groups over animal-free dairy claims
