In Common Parlance
What labels establish, and what we volunteer to believe
Six-Point Type by the Barcode
I went looking for a sentence I knew was there.
The bag said the chicken was raised without hormones. Federal law requires that anybody making that claim print, right after it, a line explaining that hormones aren’t permitted in poultry to begin with. I write about labels. I knew the rule, I knew roughly what the sentence said, I knew where to look. I turned the bag over twice and gave up.
It was there. Asterisk on the front, and down at the bottom, in the smallest type on the package, the disclaimer, doing its legally mandated work at a size that defeats a motivated reader holding it under a kitchen light.
Both statements are true. The Food and Drug Administration has never approved steroid hormone implants for growth purposes in poultry, and the Agriculture Department’s Food Safety and Inspection Service requires the disclaimer because the claim standing by itself suggests a distinction that doesn’t exist. Every bird in that case qualifies for the label. The ones that advertise it are saying something true about an entire category and letting you hear something true about one package.
FSIS knows this. The agency said so in the Federal Register, responding to comments on its 2019 guideline for animal-raising claims: consumers unaware that hormones are prohibited in certain species could be misled by a negative hormone claim, given the claim’s unusual character. That’s the regulator, on the record, describing the exact inference the label invites. In the same document FSIS specified that the qualifying statement must be “prominently- and conspicuously-displayed.”
Mine was six-point type by the barcode.
I’m not alleging a violation. One bag proves nothing, and “prominent and conspicuous” is a standard with a great deal of room in it. But the distance between what the agency says it requires and what I was holding in my kitchen is the whole subject, compressed into a freezer bag. There’s no lie anywhere in this. Not one word on that package is false. What’s happening is something more durable than lying and much harder to legislate: the space between what a label establishes and the conclusion you’re invited to supply, and what happens when the fix for that space gets drafted by people with an interest in your not reading it.
A Brief Word About Pigs
The disclaimer has its own scandal, which is that for years it was false.
The same requirement used to apply to pork. Federal regulations prohibit the use of hormones in pork, the labels said, except that they don’t. FDA has approved hormones for swine, including altrenogest and oxytocin, for purposes such as managing gestation. A consumer advocacy organization pointed this out in comments on the 2019 guideline. FSIS agreed, dropped the requirement for pork, and in a June 2020 Constituent Update told establishments to remove the line at next printing, generically, no resubmission needed. So the government-mandated correction to a misleading claim was itself inaccurate, on millions of packages, for years, and it took an outsider reading the file to catch it. The requirement survives on poultry, veal, calf, goat, mature sheep, and exotic species, where it happens to be accurate.
Nix Was Right and Lost Anyway
In 1893, John Nix sued the collector of the port of New York over a shipment of tomatoes from the West Indies.
The popular version of what followed is that a bunch of judges got confused about botany. Not so. Nix had paid duty under the Tariff Act of 1883, which taxed vegetables and let fruit in free, and he wanted his money back on the grounds that a tomato is botanically a fruit. Which it is. Justice Horace Gray, writing for a unanimous Court, said so in the opinion: “Botanically speaking, tomatoes are the fruit of a vine,” along with cucumbers, squashes, beans and peas.
Then he ruled against Nix, because nobody had asked him what a tomato is. The question was what Congress meant by “vegetable” in a tax statute, and Congress, Gray reasoned, had been talking the way people talk. In common parlance a tomato shows up with dinner rather than after it. Gray declined to import botany into a question about who owed ten percent.
Botany asks what structure a plant produced. Cooking asks when it arrives at the table. Tariff law asks who pays. Each answers its own question correctly, and each answer turns ridiculous the moment you hand it to a different one. Nothing about the tomato was ever in dispute. The only thing that moved was the question.
Congress Declares Pizza a Vegetable
The tomato came back in 2011, in worse company.
That November, Congress passed an agriculture appropriations bill barring USDA from spending money to implement a rule that would have credited tomato paste by volume in school meal programs. Coverage was immediate and joyful. Congress declares pizza a vegetable. The word “pizza” does not appear in the bill.
School meal rules had long credited tomato paste on a reconstituted basis rather than by what was sitting on the plate, on the theory that paste is concentrated and a spoonful of it stands in for a larger quantity of tomato. USDA proposed to count what was actually there. Frozen food manufacturers objected, lobbied, and won, and the rider went into a spending bill.
That’s a real story about industry access to appropriations, and in some ways a worse one than what ran, because it’s about a mechanism instead of a punchline. But “Congress protects a favorable crediting formula for tomato concentrate at the request of the American Frozen Food Institute” doesn’t travel. So the coverage compressed an administrative rule into an absurd category claim, and committed the error it was mocking. The rule never said pizza is a vegetable. The headline said that.
I’m not defending the rider. I’m pointing out that the reflex under examination here isn’t a marketing reflex. Marketers exploit it. Journalists have it too.
The Label That Mostly Works
Organic is a federal standard with certification and inspection behind it. It prohibits synthetic pesticides, genetically engineered inputs, and a long list of other practices. Buy organic expecting a particular production method and you get one.
The trouble starts one inference later. USDA’s own Economic Research Service, working from Nielsen scanner data on actual purchases rather than surveys about intentions, found that across seventeen organic products between 2004 and 2010, every single one cost more than its conventional counterpart, with the premium running above twenty percent for all but spinach. Earlier ERS work found premiums from roughly fifteen percent on onions and carrots up to about a hundred and nine percent on skim milk. People pay it.
Pew Research Center asked why. Among Americans who’d bought organic food in the previous month, seventy-six percent said one reason was to get healthier food, well ahead of convenience or environmental concern. The label certifies how something was grown. Most of the people paying the premium are buying a conclusion about their own bodies.
Here the argument has to slow down, because the easy move is to call the buyer a mark, and the easy move is wrong. Consumer Reports, which has spent a decade hammering misleading food labels, found in its own surveys that the organic label largely meets consumer expectations. Shoppers think organic means no toxic pesticides, no artificial ingredients, no genetically engineered material. Federal standards deliver all three. The inference about nutrition outruns what’s certified. The inference about production lands.
Which identifies the actual variable. A label fails when a category built to answer one question gets read as a verdict on a different one. Organic answers how this was produced, and answers it well. Nobody asked it whether the food is better for you, and it doesn’t say.
Hypoallergenic Means Whatever You Want
So write rules requiring labels to mean what people think they mean.
The FDA tried.
Cosmetics have carried the word “hypoallergenic” since the 1950s. It sounds technical. It sounds earned. In 1974 the FDA proposed, and in 1975 finalized, a regulation permitting the word only where testing on human subjects showed the product caused significantly fewer adverse reactions than comparable products not making the claim. Almay and Clinique sued. The district court sided with the agency. The D.C. Circuit reversed and struck the rule.
The reasoning is what matters. The appeals court held the FDA’s definition unreasonable because the agency hadn’t demonstrated that consumers actually perceive the term the way the regulation defined it. The rule died not because the definition was scientifically wrong but because the government couldn’t prove shoppers already understood the word that way.
FDA hasn’t tried again. Its current guidance says there’s no federal standard governing the term, that it means whatever a given company wants it to mean, and that manufacturers need not submit any substantiation whatsoever. The same vacuum covers “dermatologist tested” and “clinically proven.”
In Nix, a court made common understanding the legal test and got a sensible tariff result. In the Almay case, a court made consumer perception the legal test and produced a word that means nothing at all, permanently. Same rule of construction, opposite outcomes, and the difference is just whether the common understanding happened to be any good.
Perception Is the Test
There’s a loop in this. Consumer perception isn’t only the error being catalogued here. It’s also, in part, the legal standard that determines what a label is allowed to mean. The FTC’s Green Guides run on the same principle: whether a claim deceives turns on the net impression it leaves with reasonable consumers, not on what the words technically establish. The more thoroughly a term gets misunderstood, the more the misunderstanding becomes the baseline a regulator has to argue against. Confusion is the evidence.
What Is an Antibiotic?
Which is roughly what happened to Tyson, back in the poultry aisle, with money on the table.
In 2007 Tyson began labeling and advertising chicken as raised without antibiotics. Sanderson Farms and Perdue Farms sued in January 2008 under the Lanham Act, and their theory was that the campaign implied their own chicken contained antibiotics, or something worse. The court granted a preliminary injunction. The Fourth Circuit declined to stay it, and Tyson had fourteen days to pull posters and brochures out of 8,500 grocery stores.
The numbers explain the litigation. Tyson chief executive Richard Bond told analysts the company had seen double-digit increases in fresh chicken sales, an additional seventy million pounds a year. Sanderson attributed a four million dollar account loss to the campaign; Perdue put its lost revenue at ten million.
Tyson had gone to FSIS first and obtained label approval. According to contemporaneous reporting, the court found the advertising false anyway, on the reasoning that the agency’s review had been technical and scientific and had never asked whether the language misled anyone. Thirty years after Almay, in a different agency’s territory, the same distinction: what a term means to a regulator and what it establishes in a shopper’s head are two questions, and the agency answered one of them.
Underneath sat a definitional fight, which is where these things always end up. The dispute turned on whether an ionophore counts as an antibiotic. Tyson’s position was that ionophores control a poultry parasite and aren’t used in human medicine, so the claim was true on the definition that mattered. Sanderson and Perdue said an antibiotic is an antibiotic. Nobody disputed what was in the feed. They disputed the boundary of a word. Then USDA inspectors reportedly found gentamicin in unhatched eggs, which is an antibiotic under anybody’s definition, and the argument about boundaries stopped being available.
Worth noting, in the middle of all this, that Sanderson Farms says in its own consumer FAQ that the no-hormones-added claim “doesn’t really mean anything since their use is illegal” in poultry anyway. A major producer, in writing, on its own website. The industry is not confused about what the label does.
Botulinum Is Natural
The word “natural” has no federal definition for most foods at all.
Consumer Reports has surveyed this repeatedly. In a December 2015 survey of just over a thousand adults, sixty-two percent said they usually buy foods labeled natural, and close to two-thirds believed the label means more than it does. An earlier survey found large majorities expecting “natural” to mean grown without pesticides, free of artificial ingredients, and free of genetically engineered material. None of which the term guarantees. None of which anyone verifies. Eighty-seven percent of people who buy natural food told CR they’d pay more if the label meant what they assume it means, which is a strange finding, because they’re already paying more.
Underneath the labeling question sits a reasoning question, which is the belief that natural origin is itself evidence of safety. Botulinum toxin is natural. So is ricin. Chlorine is synthetic and it’s the reason your water won’t kill you. What sorts a substance isn’t where it came from but what it is, how much of it, by what route, and for how long. A label organized around origin cannot answer a question posed about effect.
Some of this is innocent shorthand. Some of it isn’t, and the difference has to be established with records rather than assumed from who profits. Consumer Reports has reported that the Grocery Manufacturers Association petitioned FDA to keep permitting the natural label on products containing genetically engineered ingredients. A documented act of lobbying to preserve a useful ambiguity is not a conspiracy, and it’s not an accident either.
The industry’s own defense is better than it gets credit for, and it deserves an airing. When the animal welfare group Voiceless complained to Australia’s competition regulator in 2011 about no-hormones advertising by Oporto, Steggles and La Ionica, arguing the ads suggested producers were at liberty to use hormones and had nobly declined, Andreas Dubs of the Australian Chicken Meat Federation answered that repeated surveys found seventy-five percent of Australians still believed hormones were added to chicken. The industry, on this account, isn’t manufacturing a myth. It’s failing to kill one, and putting the truth on the package is what failure looks like. Ingrid Just of the consumer group Choice made the opposite case in the same coverage: advertise no added hormones and you imply that the products not saying it are adding them. Both of them are right, which is the problem.
The Triangle Was Never for You
The chasing arrows triangle on the bottom of a plastic container is not a recycling symbol. It’s a resin identification code, created by the Society of the Plastics Industry, and the number inside tells a sorting facility what polymer it’s holding. It was designed for machines and the people who run them.
Consumers found it anyway, and read it the way anybody would read a triangle of arrows.
As of 2021, thirty-six states required the resin code with chasing arrows on plastic containers, a requirement the plastics industry championed around 1988. In October 2021 California enacted SB 343, which deems the chasing arrows symbol a deceptive or misleading recyclability claim unless the item meets state recyclability criteria, and directed CalRecycle to work out what qualifies. The same mark, on the same container, is legally mandated in dozens of states and presumptively deceptive in another. The plastic did not change. Again, the question changed.
The federal standard is narrower than the public reading. The FTC’s Green Guides permit an unqualified recyclable claim only where facilities are available to a substantial majority of consumers, which the guides put at sixty percent of where the item is sold. In a 2023 comment to the FTC, EPA argued that pairing resin codes with chasing arrows misrepresents recyclability, since plastics numbered three through seven largely lack end markets, and noted that less than ten percent of plastic gets recycled. Consumer Action polled a thousand adults in July 2019 and found fifty-eight percent believed plastic is endlessly recyclable.
Here There Are Memos
So far this is the hypoallergenic problem wearing different clothes. What separates it is the paper trail.
NPR and PBS Frontline, reporting in 2020, obtained internal industry records going back to the 1970s. An April 1973 report to executives called recycling plastic costly and difficult and described sorting it as infeasible. A document the following year stated there was serious doubt that widespread plastic recycling could ever be made economically viable. Two former officials of the Society of the Plastics Industry, Larry Thomas and Lew Freeman, went on the record with the reporters. Freeman said nobody had ever enthusiastically believed recycling would work at scale. Thomas described the strategy without embellishment: a public that believes recycling is working is a public that isn’t worried about the environment. A 2024 report from the Center for Climate Integrity added a 1989 statement from the head of the Vinyl Institute conceding that recycling doesn’t solve the solid waste problem.
In September 2024 California sued ExxonMobil over its plastic recyclability claims, citing that reporting. The company disputes the allegations and the case hasn’t been decided, so I’m not asking anyone to accept a verdict nobody has rendered. But everywhere else in this essay, intent has to be inferred from structure and incentive. Here there are memos.
How It Was Made
Every example so far is a label that flatters, which makes the argument easy to file under consumer skepticism and forget.
The same reasoning runs in reverse. Take “ultra-processed,” a classification researchers built to sort foods by degree of industrial processing, which has migrated into ordinary speech as a verdict on whether a food is bad for you and is now turning up in labeling proposals. Whether processing is itself the causal variable, or a proxy for salt and sugar and fat and the plain fact that engineered food is easy to overeat, is contested and unresolved. What isn’t contested is the structure: a process-based category, built for one analytical purpose, doing moral work nobody assigned it.
That’s the same error as GMO, running the other direction.
Genetic engineering is a method. It describes how a trait got introduced, not what the trait does. A crop engineered to resist drought and a crop engineered to tolerate an herbicide have nothing in common but a technique, and putting them in one box tells you nothing about either. Selective breeding rearranges genomes too, more crudely, less predictably, and with no label on the outcome. Object to a company’s licensing practices, or to herbicide volume, or to seed consolidation, and you have real arguments, but they’re arguments about contracts and markets and traits. Routing them through the process makes them harder to win, because the process was never the thing you objected to.
So: engineered food is not thereby safe, and ultra-processed food is not thereby poison. What keeps happening is that how it was made gets used as evidence of what it does, and the substitution feels like reasoning in both directions. When it flatters the product, we call it marketing. When it condemns the product, we call it common sense.
What Was Measured
A useful label would tell you what was measured. Most of them tell you what was done and leave you to handle the rest, which is why the questions worth asking are so unglamorous. Whether the claim describes a process or an outcome. What it’s being compared to, since a claim without a comparison group establishes nothing. What’s already required by law of every product in the category, which is where the chicken hides. Who built the category, and what problem they built it to solve.
And then the harder one, the one Almay forces. If a label’s legal meaning is anchored to what people already assume, every widely misunderstood term is partly self-ratifying, and no amount of drafting fixes that from the top. The tomato was a vegetable because we said it was. Hypoallergenic means nothing because we couldn’t agree on what we meant. A category is a tool somebody built, for a purpose, to answer a question that may not be yours, and the label on the package is the last place that gets explained to you.
My bag is still in the freezer. The claim is legible from across the room.
The correction still isn’t.
Sources
Hormones, poultry, and the disclaimer
USDA Food Safety and Inspection Service, “Meat and Poultry Labeling Terms” https://www.fsis.usda.gov/food-safety/safe-food-handling-and-preparation/food-safety-basics/meat-and-poultry-labeling-terms
USDA Food Safety and Inspection Service, “Chicken from Farm to Table” https://www.fsis.usda.gov/food-safety/safe-food-handling-and-preparation/poultry/chicken-farm-table
Federal Register, FSIS Labeling Guideline on Documentation Needed to Substantiate Animal Raising Claims for Label Submission, December 27, 2019. Source for the agency’s acknowledgment that a negative hormone claim can mislead, and for the “prominently and conspicuously displayed” requirement. https://www.federalregister.gov/documents/2019/12/27/2019-27845/food-safety-and-inspection-service-labeling-guideline-on-documentation-needed-to-substantiate-animal
USDA Food Safety and Inspection Service, Constituent Update, June 19, 2020. Source for the removal of the pork disclaimer. https://www.fsis.usda.gov/news-events/news-press-releases/constituent-update-june-19-2020
Sanderson Farms, Frequently Asked Questions. The company’s own characterization of the no-hormones claim. https://sandersonfarms.com/frequently-asked-questions/
The Poultry Site, on the Voiceless complaint to the ACCC and the Australian Chicken Meat Federation’s response, October 2011. https://www.thepoultrysite.com/news/2011/10/consumers-misled-by-no-hormone-claims
Nix v. Hedden
Nix v. Hedden, 149 U.S. 304 (1893), full opinion. Justia. https://supreme.justia.com/cases/federal/us/149/304/
Nix v. Hedden, 149 U.S. 304 (1893). Cornell Legal Information Institute. https://www.law.cornell.edu/supremecourt/text/149/304
The 2011 school meal rider
NBC News, on the appropriations rider and the pizza coverage, November 2011. https://www.nbcnews.com/health/health-news/pizza-vegetable-congress-says-yes-flna1c9453097
Marion Nestle, Food Politics, on the tomato paste crediting rule and the lobbying behind the rider, November 2011. https://www.foodpolitics.com/2011/11/ketchup-is-a-vegetable-again/
Organic
USDA Economic Research Service, “Investigating Retail Price Premiums for Organic Foods,” Amber Waves, May 2016. Nielsen scanner data on seventeen organic products, 2004 to 2010. https://www.ers.usda.gov/amber-waves/2016/may/investigating-retail-price-premiums-for-organic-foods
Pew Research Center, “Americans’ Views About and Consumption of Organic Foods,” December 1, 2016. https://www.pewresearch.org/internet/2016/12/01/americans-views-about-and-consumption-of-organic-foods/
Hypoallergenic
U.S. Food and Drug Administration, “Hypoallergenic Cosmetics.” Agency account of the 1974 proposal, the 1975 rule, and the D.C. Circuit’s reversal. https://www.fda.gov/cosmetics/cosmetics-labeling-claims/hypoallergenic-cosmetics
“Natural”
Consumer Reports, “Peeling Back the ‘Natural’ Food Label.” Survey findings on consumer expectations, and the Grocery Manufacturers Association petition to FDA. https://www.consumerreports.org/food-safety/peeling-back-the-natural-food-label/
Consumer Reports survey release, PR Newswire. The December 2015 National Research Center survey of just over a thousand adults. https://www.prnewswire.com/news-releases/consumer-reports-survey-majority-of-americans-look-for-natural-label-when-shopping-believe-it-carries-benefits-despite-the-contrary-263259671.html
Tyson and “Raised Without Antibiotics”
The Washington Post, on the Sanderson Farms and Perdue litigation, the injunction, and the sales figures, May 2008. http://www.washingtonpost.com/wp-dyn/content/article/2008/05/01/AR2008050103514.html
Olshan Frome Wolosky, Advertising Law Blog, on Tyson’s withdrawal of the campaign and the limits of FSIS label approval as a defense. https://www.olshanlaw.com/Advertising-Law-Blog/Tyson-Withdraw-Antibiotics-Advertisements
Recycling and the chasing arrows
Federal Trade Commission, Green Guides (16 CFR Part 260). The sixty percent threshold for unqualified recyclability claims. https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-issues-revised-green-guides/greenguides.pdf
Beveridge & Diamond, “California Prohibits Use of Chasing Arrows on Non-Recyclable Items.” Analysis of SB 343. https://www.bdlaw.com/publications/california-prohibits-use-of-chasing-arrows-on-non-recyclable-items/
E&E News, on the EPA’s 2023 comment to the FTC calling the symbol deceptive. https://www.eenews.net/articles/epa-looks-to-toss-deceptive-plastics-recycling-symbol/
Oregon Department of Environmental Quality, survey of state recycling labeling laws. Source for the thirty-six state count. https://www.oregon.gov/deq/recycling/Documents/recTILlawsToday.pdf
Consumer Action, poll of one thousand U.S. adults, July 2019. https://www.consumer-action.org/press/articles/consumer-poll-finds-americans-incorrectly-believe-plastic-is-most-recyclable-material
NPR, “Plastic Wars: Three Takeaways From the Fight Over the Future of Plastics,” March 31, 2020. https://www.npr.org/2020/03/31/822597631/plastic-wars-three-takeaways-from-the-fight-over-the-future-of-plastics
PBS Frontline, “Plastics Industry Insiders Reveal the Truth About Recycling.” Larry Thomas and Lew Freeman on the record. https://www.pbs.org/wgbh/frontline/article/plastics-industry-insiders-reveal-the-truth-about-recycling/
NPR, February 15, 2024, on the Center for Climate Integrity report and the 1989 Vinyl Institute statement. https://www.npr.org/2024/02/15/1231690415/plastic-recycling-waste-oil-fossil-fuels-climate-change
PBS Frontline, on California’s September 2024 suit against ExxonMobil. https://www.pbs.org/wgbh/frontline/article/california-exxonmobil-plastics-recycling-lawsuit/