Plant-based milk producers may soon no longer be able to put “milk” on their labels.
Almond water. Oat drink. Soy beverage.
You may see these products and other similar items coming soon to a grocery store near you.
About one-third of all U.S. households buy some form of plant-based “milk.” These plant-based alternatives account for about 13 percent of total “milk” sales in the United States. But Scott Gottlieb, the Commissioner of the U.S. Food and Drug Administration (FDA), has reportedly expressed interest in restricting the use of the term “milk” by enforcing federal rules aimed at combatting misleading labels.
Under current law, a label is misleading if it mischaracterizes an ingredient or nutrient level that is required to be in that type of food or beverage product. FDA is responsible for defining a broad range of food products, and these definitions determine what producers are allowed to claim on a label. If FDA finds a label to be misleading, it can enforce these standards by taking actions like seizing products or imposing judicially enforceable bans on sales of the products.
FDA currently defines “milk” as “lacteal secretion…obtained by the complete milking of one or more healthy cows.” FDA has, however, never enforced this standard. Furthermore, Gottlieb has reportedly said that FDA would not enforce the milk standard until it solicits public comment and then issues a guidance document for producers.
Last September, FDA did indeed request public comment on how to label plant-based milk alternatives. The comment period ended earlier this year, and FDA received over 8,000 public comments. Gottlieb has reportedly mentioned that producing a guidance document will take “close to a year.”
The Plant Based Foods Association argues that FDA’s attempts to restrict milk labeling standards would harm the market for soy, almond, and other similar beverages by hindering innovation and increasing costs. The Plant Based Food Association claims that any attempt to enforce labeling standards would violate its members’ free speech rights, and instead of stifling the industry’s growth, FDA should promote and invest in the growing market of plant-based milk alternatives.
But the National Milk Producers Federation claims that the nutritional value of dairy milk is not analogous to non-dairy alternatives. The National Milk Producers Federation argues that non-dairy alternative milks have contributed to nutritional deficiencies in children, and plant-based milk alternatives mislead consumers into making harmful health choices. According to a recent survey, about 35 percent of respondents thought that plant-based milk products contained an “equal or higher protein quality” than dairy milk. The National Milk Producers Federation argues that such misconceptions show why FDA needs to enforce labeling restrictions.
The authors of an independent study found that plant-based milk alternatives were not nutritional substitutes for dairy milk. According to the study, plant-based beverages had a lower protein content, and other nutrients—such as calcium that can be digested by the body—were more prevalent in cow’s milk than plant-based alternatives.
Even though nutritional differences exist, the Good Food Institute argues that basing labeling law on nutritional guidelines is “absurd” and contends that consumers are not confused by products such as hemp milk. Instead, the Good Food Institute argues that FDA is attempting to “censor one industry to protect another from competition.”
In December the U.S. Court of Appeals for the Ninth Circuit ruled that labeling almond milk as “milk” was not deceptive. The Ninth Circuit upheld a dismissal holding that the plaintiff’s claims did not “plausibly allege” that the reasonable consumer would be deceived.
The National Milk Producers Federation, however, argues that confusion is widespread and that the adjacent placement of dairy and non-dairy milk products in grocery stores has created a misconception about nutritional values that harms consumers. The National Milk Producers Federation views this difference as misleading under FDA regulations.
In a similar vein, FDA attempted to enforce labeling requirements in 2015 on the company JUST, Inc. concerning the company’s vegan product, JUST Mayo. FDA argued that the term “mayo” required the product to contain eggs. Ultimately, FDA did not bring an enforcement action and instead worked with JUST to develop a new label that deemphasized the word mayo.
FDA can choose to work with producers like it did with JUST. But then again, as Gottlieb reportedly said in a media interview, an “almond doesn’t lactate.”