Perfect Day is facing a lawsuit filed by the GMO/Toxin Free USA (GTFU) and the Organic Consumers Association, who allege the company misled consumers about its synthetic dairy protein, ProFerm.
The US start-up is known for pioneering animal-free whey protein through precision fermentation, promoting it as a sustainable, cruelty-free alternative to traditional dairy.
ProFerm – a bioengineered, recombinant beta-lactoglobulin protein – is used in products like Bored Cow’s Animal-Free Dairy Milk, MyProtein’s Whey Forward and and Unico Nutrition’s Apollo protein powder. It’s made using synthetic biology and precision fermentation and has FDA GRAS (Generally Recognised As Safe) approval.
The non-profits filed the complaint in the Superior Court of the District of Columbia Civil Division, claiming that Perfect Day and its partners misleadingly market ProFerm as 'whey protein' or 'milk-identical,' leading consumers to believe it's equivalent to cow-derived whey and produces milk identical to cows. The complaint alleges advanced testing showed 86.6% of ProFerm consists of fungal proteins, not found in traditional dairy.
The complaint states: “Perfect Day supplies retail and commercial partners with a synthetic, bioengineered protein product, which Perfect Day and those partners refer to as ‘whey protein’ or ‘milk-identical’ protein, to create purportedly 'animal-free’ dairy.”
It continues: “Perfect Day states and DC consumers reasonably believe that the resulting bioengineered protein product is identical to cow-derived whey protein and creates milk that is identical to cow’s milk. Contrary to the belief Perfect Day creates in consumers, Perfect Day’s protein product is not equivalent to cow-derived whey protein. Nor does it produce milk identical to cow’s milk. Advanced testing reveals that 86.6% of the product consists of fungal proteins secreted during the production process.”
The non-profits also allege that “the risks related to making and consuming the protein product have not been disclosed to consumers.” Instead, they say Perfect Day “markets its protein product as safe, environmentally friendly and identical to cow-derived whey and encourages other brands to market the protein that way in their products, to Perfect Day’s profit and benefit.”
As part of the legal action, GTFU and the Organic Consumers Association commissioned independent research from the Health Research Institute (HRI), a public-interest laboratory. HRI analysed ProFerm and a related product, alongside certified-biodynamic and certified-organic whole cow’s milk. The analysis found that ProFerm is only 13.4% cow’s whey protein and contains 93 fungal compounds not found in cow’s whey, along with a fraction of the nutritional value of cow’s milk.
HRI further alleges that the novel proteins in ProFerm could become toxic and allergenic, posing potential risks for human consumption.
ProFerm has GRAS approval and tests by the Food Allergy and Resource Program (FARRP) at the University of Nebraska-Lincoln indicate that ProFerm has 6.7% fungal protein, much lower than the amount alleged in the lawsuit.
According to its GRAS notice, Perfect Day notes that FARRP determined that the beta lactoglobulin samples it tested did not contain “sufficient residual fungal proteins to present allergenicity concerns”.
The ingredient has been used by a number of industry giants, including Nestle and Unilever. It can be used instead of conventional whey in a range of applications and emits up to 97% fewer emissions, consumes up to 99% less water and requires less non-renewable energy to create.
GTFU advocates for a healthy food system and non-toxic products, educating consumers about the hazards of GMOs, pesticides and other toxins, while the Organic Consumer Association addresses issues around food safety and genetic engineering. Both companies say they are not seeking damages, but are seeking an injunction to stop ‘deceptive marketing’.
This is the second legal challenge Perfect Day has faced this year, having only just ended its lawsuit with a co-manufacturing partner.
