US food tech startup Perfect Day has been hit with a false marketing lawsuit for its FDA-approved, animal-free dairy whey protein.
Months after ending its lawsuit with a co-manufacturing partner, Californian precision fermentation pioneer is now facing another legal challenge.
This time, it’s about the company’s marketing rather than manufacturing, with the Organic Consumers Association and GMO/Toxin Free USA accusing it of “false, unfair and deceptive” advertising and “material omissions”.
Filed in the Superior Court of the District of Columbia Civil Division, the complaint targets Perfect Day’s ProFerm ingredient, a recombinant beta-lactoglobulin protein approved for sale by the Food and Drug Administration (FDA). ProFerm is the base of Bored Cow’s animal-free milk line, Strive Nutrition’s FreeMilk range, Myprotein’s Whey Forward protein, and Unico Nutrition’s Apollo protein powder, among others.
Trade groups describe precision fermentation as a combination of traditional fermentation with the latest advances in biotechnology to efficiently produce a compound of interest.
The lawsuit takes issue with Perfect Day’s claim that its “bioengineered protein product is identical to cow-derived whey protein and creates milk that is identical to cow’s milk”, citing a 2024 study (refuted by Perfect Day) claiming that there were 93 unknown molecules, plus fungicide residue, in a Bored Cow product.
Why Perfect Day is being sued
Described the innovation as “the world’s first nature-identical dairy protein, without any animal inputs”, Perfect Day’s ingredient has been used by a number of industry giants, including Nestlé, Unilever, and General Mills. It can be swapped with conventional whey in a range of applications, and offers a higher branched-chain amino acid content than any other whey protein on the market.
Plus, it emits 91-97% fewer emissions, requires 29-60% less non-renewable energy, and consumes 96-99% less water than its cow-derived counterpart.
However, the plaintiffs accuse Perfect Day of “misrepresentation to the FDA”, adding that the case is about violating the District of Columbia’s consumer protection law.
“Perfect Day markets the ‘milk’ as ‘identical’ to cow’s milk. That’s what we’re going after them for. That kind of false advertising is illegal, and it’s something we can take direct legal action against,” Alexis Baden-Mayer, political director for the Organic Consumers Association, told Children’s Health Defense – this is the anti-vaccine disinformation organisation formerly helmed by Robert F Kennedy Jr, the US health secretary.
The argument is based on a study by the Health Research Institute (HRI), which analysed ProFerm and a Bored Cow product and claimed that the ingredient contained only 13% cow’s whey protein, the rest comprising fungal proteins. It suggested that ProFerm had 93 fungal compounds unknown to science, and missed 69 nutrients found in cow’s milk.
It alleged that Bored Cow is using the term ‘microflora’ to avoid calling its product ‘GMOs’, although the product website states that “there are no GMOs in the final product, because the microflora are carefully filtered out”. Additionally, HRI claimed that the novel compounds in ProFerm could be or become toxic, allergenic, disruptive to nutrition and biome function, and cause dysbiosis.
The complaint also suggests that Perfect Day hasn’t proven its protein as safe for humans or the environment, despite the FDA’s GRAS (Generally Recognized as Safe) decision disagreeing with that assertion. “Many of the fungal proteins and compounds have not been adequately studied for human consumption, and ProFerm’s production process itself may pose environmental risks,” it reads.
Plaintiffs question FDA safety process, but have vested interests
The suit is seeking declaratory relief and an injunction to “stop the deceptive marketing of ProFerm” in DC, and the plaintiffs are demanding a jury trial.
In response to the study, Perfect Day told Green Queen last year that HRI hasn’t published or made its data publicly available, and questioned the “methods and materials used in testing the product”.
“Bored Cow does not contain microflora. All microflora are filtered out in the final step of Perfect Day’s fermentation process, leaving only the pure protein that Bored Cow uses in their multi-ingredient, kinder, greener product,” a company representative said.
“Additionally, this article contains inaccurate information on the FDA GRAS process. The FDA evaluation for our GRAS notification was very thorough and detailed on safety, nutrition, and quality. And, there are no fungicides used anywhere in our process for making whey protein from fermentation and, furthermore, no fungicide could be created as a result of our process.”
Diana Reeves, executive director of GMO/Toxin Free USA, said it was “deeply concerning” that a “nutritionally devoid substance composed primarily of fungal proteins never before consumed by humans” could be labelled as cow-derived whey: “Allowing this aberration into our food supply and classifying it as GRAS highlights the urgent need to reevaluate our regulatory framework for food.”
It comes at a time when the FDA’s rule that allows companies to self-affirm ingredients as safe (based on independent scientific evaluations) is under threat, thanks to RFK Jr’s Make America Healthy Again movement. Perfect Day, however, would not be affected by the removal of this provision, as it holds a ‘no questions’ letter from the FDA, indicating it has undergone safety assessments from the government body.
It’s worth noting that the Organic Consumers Association has a vested interest here. The group has been described as engaging in “anti-science activities” and promoting anti-vaccine conspiracies, and counts anti-vaccine influencer Joseph Mercola as a donor.
Meanwhile, Perfect Day – much like the alternative protein industry it’s in – has had a rollercoaster couple of years. While it partnered with food behemoths and said it was raising $90M in Series E funding, it sold off its consumer brands division, The Urgent Company, and gave away half of its stake in Indian manufacturer Sterling Biotech. Co-founders Ryan Pandya and Peramul Gandhi left the company early 2024, and TM Narayan (who took over from Pandya as interim CEO) exited earlier this year. So far, a new CEO has not been announced.
Green Queen has contacted Perfect Day with a request for comment.
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