FDA could follow N.C. example on regulating use of term ‘milk’

By: Lindsay Marchello - Carolina Journal

RALEIGH — The Food and Drug Administration announced Thursday that it’s seeking information on how consumers use milk alternatives as a first step in potentially changing how plant-based dairy substitutes are labeled.

“We are interested in learning whether consumers are aware of and understand the basic nature, essential characteristics, characterizing ingredients, and nutritional differences between plant-based products and dairy foods,” the announcement reads.

The announcement goes on to say the comments will be used to develop an approach toward labeling plant-based dairy substitutes, including soy, almond, and coconut milk.

Michael Dorf, a Cornell law professor, said the government has a legitimate interest in general in labeling food and drinks in a way that doesn’t mislead consumers. But Dorf said this particular case seems less about protecting consumers and more about protecting the dairy industry from competition.

“The problem as I see it is not that the FDA is proposing to label food, but that they are doing so contextually,” Dorf said. “The claim is that they just want consumers to know what the nutritional value is, but in fact this is an effort to stifle a burgeoning industry on behalf of an established industry.”

Non-dairy alternatives have grown in popularity. Data from Nielsen, commissioned by the Plant Based Foods Association, found that non-dairy milk sales rose 9 percent to $1.6 billion in 2018. Conversely, the share of cow’s milk in market sales dropped 6 percent.

The National Milk Producers Federation wrote to FDA Commissioner Scott Gottlieb on Oct. 26 to request he enforce the “standard of identity” requirement for non-dairy “milk” products. This requirement dictates what standards a food item must meet to use a certain label. For example, the standard of identity for milk states that “milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”

North Carolina is a step ahead of the federal government in terms of dictating what is and isn’t milk. The Farm Bill, Senate Bill 711, became law earlier this year in June despite a veto from Gov. Roy Cooper. It directs the N.C. Department of Agriculture to develop an enforcement plan to carry out the FDA’s standard of identity for milk and to prohibit the sale of plant-based products labeled as milk.

Dorf said a few possible challenges could follow new FDA regulations over the labeling of plant-based milk products.

“One possibility is an administrative law challenge. All agencies’ actions can be challenged on the grounds that its arbitrary and capricious, and so if it can be shown that this really isn’t about nutrition or consumer information, that would be grounds to challenge it in a lawsuit — but only after a rule would be promulgated,” Dorf said.

Another possibility is a free speech challenge, but that depends on the kind of regulation the FDA comes up with.

“If they require the producers to put a nutritional label on it, well that’s fine, all food has to have that,” Dorf said. “If they require them to say it does not contain dairy, that’s fine. But if they say they can’t use the word milk, well that could present a challenge.”

Dorf said conglomerates that sell a lot of dairy products are selling plant-based milk. This could be a long-term solution to the animosity between the industries, no matter what the FDA decides.

“If there is a market for plant-based milk, and there seems to be a growing one, then savvy corporate directors who are in the business of selling dairy are going to sell the plant-based milk, too,” Dorf said.

Lindsay Marchello is a staff writer for Carolina Journal.

Lindsay Marchello

Carolina Journal