Dairy farmers who want the terms “soy milk” and “almond milk” banished from our lexicon may soon get their way as a federal agency plans to enforce the definition of “milk” as something that comes from a cow, not a plant.
U.S. Food and Drug Administration Commissioner Scott Gottlieb said Tuesday that he intends to implement the change over the next year or so.
The agency has long had a definition of milk as being an animal-based product, but it hasn’t been enforced.
“This has been a little bit of a bugaboo to the dairy industry,” Gottlieb said during a Politico event in Washington, D.C.
“But we do have a standard of identity, and I intend to enforce that,” he said.
This week, the American Dairy Coalition launched an effort aimed at persuading the FDA to not expand the definition of milk to include plant-based beverages.
The FDA has scheduled a July 26 public hearing on that, and other matters, in Washington, D.C.
“It is crucial the dairy industry speaks up” on the issue, the American Dairy Coalition, based in Green Bay, said in a statement.
“We can no longer stand by” and allow plant-based beverages to be labeled as milk, the statement said.
The dairy industry says the FDA hasn’t enforced its labeling regulations, resulting in a cascade of products such as soy, almond, rice, coconut and oat beverages to flow into the dairy aisle under the guise of milk.
“After years of inaction … Dr. Gottlieb’s announcement that the agency is intending to act on this issue is very encouraging,” said Jim Mulhern, president and CEO of the National Milk Producers Federation, based in Arlington, Va.
The FDA’s previous inaction “has led to rampant consumer fraud related to the inferior nutrient content of these non-dairy products compared to their true dairy counterparts,” Mulhern said.
It’s been confusing for consumers, said Laurie Fischer, executive director of the American Dairy Coalition, whose membership includes large dairy farms and milk processors.
“The dairy industry is taking a stand and saying ‘milk is milk.’ And we want to make sure that consumers understand what it is,” Fischer said.
A contentious issue
Critics of the effort to ban the word “milk” from plant-based beverages say it’s more about propping up the dairy industry than clearing up any confusion.
“No one is buying almond milk, or soy milk, thinking that it came from a cow,” said Matthew Ball, spokesman for the Good Food Institute, a Washington, D.C., group that advocates for plant-based foods.
Good Food says it has gathered thousands of petition signatures that make it clear people know the difference between soy and regular milk.
Plant-based beverage makers use the word “milk” on their labels because the products are used in a way similar to cow’s milk, according to Ball.
People put soy milk on their cereal, for example, just like they would regular milk.
“This is a free speech issue. There’s no way it can be painted as misleading consumers,” Ball said.
Before the FDA can implement the change, Gottlieb said, there will have to be public hearings to gather comments.
“It will probably take close to a year to go through that process. But that’s what we intend to do,” he said.
“Invariably, we will probably get sued, as well, because the dictionary says milk can come from a lactating animal or a nut.”
Gottlieb’s comments Tuesday were similar to testimony he presented this spring to the Senate, when he acknowledged the FDA has “exercised enforcement discretion” in not holding food marketers to federal standards limiting the use of standardized food terms.
Soon, Mulhern said, “manufacturers currently playing fast and loose by using standardized dairy terms on products containing no dairy will know the jig is up. Their products have every right to be in the marketplace, but they will have to be properly identified to comply with FDA standards.”
Sales of milk as a beverage have been in decline for many years, while sales of plant-based beverages are up more than 60 percent during the past five years, according to industry figures.
Wisconsin lost 500 dairy farms in 2017. So far this year, nearly 350 in the state have stopped milking cows, according to the American Dairy Coalition.
“Dairy farms are going out of business at an alarming rate,” Fischer said, adding that sales of soy and almond milk have sped up the decline.
The Good Food Institute will sue the FDA if the agency bans the use of dairy terms on plant-based products, according to Ball.
“Almond milk and soy milk are the clearest and best terms for describing those products. For the same reason that we see gluten-free bread and rice noodles on grocery shelves, soy milk and almond milk are perfectly natural product names. Any other finding would confuse consumers and violate the First Amendment, common sense, and FDA’s neutrality in the marketplace,” he said.
“We are optimistic the FDA will make the right call, allowing plant-based producers to continue to clearly label their products as what they are,” Ball added. “The government is only allowed to restrict commercial speech if there is a substantial risk of consumer harm, and their solution is narrowly tailored to solve the harm. There is no way that the act of censoring plant-based milk makers would be able to clear this clear constitutional bar.”