Where indeed, says Good Food Institute policy director Nicole Negowetti, who says the one thing all sides can agree upon is that there has been a frustrating lack of clarity from the FDA as to its position on non-dairy ‘milk,’ which plant-based brands say leaves them vulnerable to lawsuits, and dairy milk producers (who believe plant ‘milk’ brands are openly flouting the law ), find infuriating.
“There is significant regulatory uncertainty regarding these products,” says Negowetti.
But if there's uncertainty over milk, wait until you look at labeling conventions around cheese, says Matthew Sade, CEO of cultured nut-based brand Kite Hill, who says standards of identity for several dairy products are in urgent need of an overhaul.
"I sell 'artisan almond milk products .' I don't even know what that means, and I'm making them. You need to be able to readily communicate to the consumer at a glance what your product is and how to use it, so not being able to call it by the name that most readily defines it, flies in the face of what regulations are all about, which is to keep consumers safe and not to mislead them."
We just want to be able to use terms that consumers understand
And in the absence of intervention from the FDA on the plant-based cheese issue, he said, states have developed their own rules, which has created an uneven playing field and led to a plethora of descriptors from ‘cultured nut product ’ to ‘Treenut cheese .'
When standards of identity were originally conceived, adulteration was rife, and consumers were being duped by cheap knock-offs purporting to be dairy products, he said. But modern plant-based food brands such as Kite Hill are not 'purporting' to be dairy products, he says. They just want to be able to use terms that consumers understand.
While some commentators believe that the FDA's apparent lack of interest in enforcing such "antiquated" standards should be taken as a sign that it's OK to start using terms such as 'vegan cheese,' or 'almond ice cream,' plaintiff's attorneys and state lawmakers may beg to differ, he says. In other words, the FDA needs to clarify its position, not just assume that its silence speaks volumes.
"While there is some legal precedent on plant based milks [in which judges concluded terms such as 'soy milk' were NOT misleading], we don't have precedents in the world of cheese and yogurt. The federal government needs to step in and recognize that the world has changed."
"I sell 'artisan almond milk products .' I don't even know what that means, and I'm making them..."
Matthew Sade, CEO, Lyrical Foods (Kite Hill)
If it looks, tastes and smells like milk…
And it’s not as if the issue is going away, points out Negowetti at the Good Food Institute. New plant-based alternatives to dairy cheese, yogurt, butter and meat are hitting shelves weekly, while new technology is also enabling firms such as Perfect Day and Memphis Meats to produce products that precisely replicate their animal-based counterparts, she says.
And this could open up a whole new regulatory can of worms. (If it looks like a duck, swims like a duck, and quacks like a duck…)
The big question, according to the GFI (which filed a lawsuit last summer to force the FDA to clarify its position on ‘soy milk’), is whether the FDA – already pondering the meaning of ‘healthy’ and ‘natural’ – has the energy or resources to wade into another food labeling minefield that could potentially prompt a far wider debate over standards of identity.
“We’re still waiting for them to send over documents we requested in the lawsuit and once we get them, we’ll look at all our options," says Negowetti. "A petition [to ask the FDA to draft additional standards of identity for plant-based milks or to ask it to revise the existing SOI for ‘milk’] is one option, but right now we are trying to figure out what the most effective strategy will be.”
The GFI’s lawsuit (The Good Food Institute v the FDA 1:16-cv-1052), for example, notes that the Soyfoods Association of America had petitioned FDA to formally recognize ‘soy milk’ as the common or usual name for soy beverages in 1997 and is still waiting for an answer.
That said, some commentators believe that it was citizen's petitions that finally prompted the FDA to weigh into the 'natural' debate, she says.
Where does the FDA stand?
The FDA, she adds, has fluctuated unhelpfully on this issue, querying the term ‘soy milk’ in warning letters to manufacturers Lifesoy in 2008 and Fong Kee Tofu in 2012, but thereafter maintaining radio silence on the topic despite repeated requests from the National Milk Producers Federation (representing dairy farmers) and the Good Food Institute (representing plant-based milk, egg, dairy and meat companies) to clarify its position once and for all.
The agency also raised eyebrows last year by telling Hampton Creek it could keep its ‘Just Mayo’ brand name for its egg-free spread (which does not comply with the egg-based standard of identity for mayonnaise ), albeit with minor tweaks to the label, just weeks after accusing it of violating said standard.
So what can plant-based brands take away from the Hampton Creek saga?
Was the FDA effectively saying that as long as you include a disclaimer (egg-free/dairy-free) prominently on the label (just as Muscle Milk ‘contains no milk’ and is 'non-dairy') and employ other tactics (words, imagery etc) to ensure that shoppers could be under no illusions about what you’re selling (eg. you’re not being false and misleading), you are OK?
Civil litigation over plant-based ‘milk’
This certainly appears to be how federal judges handling civil lawsuits over plant ‘milk’ vs White Wave Foods and Trader Joe’s (click HERE ) appeared to interpret the law, with US district judge Vince Chhabria noting that the word ‘soy’ before ‘milk’ cleared up any confusion as to the contents of the package in question.
The fact that the federal standard of identity for ‘milk’ limits it to lacteal secretions from cows “does not categorically preclude a company from giving any food product a name that includes the word milk,” he added. (Peanut butter, for example, is not subject to the standard of identity for ‘butter.’)
“The standardization of ‘milk’ simply means that a company cannot pass off a product as ‘milk’ if it does not meet the regulatory definition of milk,” he pointed out. “Trader Joe's has not, by calling its products ‘soymilk,’ attempted to pass off those products as the food that the FDA has standardized (that is, milk).”
In other words, if Trader Joe’s had simply called its soy-based product ‘milk,’ it might have a case to answer, said the judge, who added: “The reasonable consumer, indeed, even the least sophisticated consumer, does not think soymilk comes from a cow.”
“The reasonable consumer, indeed, even the least sophisticated consumer, does not think soymilk comes from a cow.” US district judge Vince Chhabria
From a commercial perspective meanwhile, with meat and dairy companies such as Tyson Foods and Danone buying or investing in plant-based brands , it may not be as clear as it was where some major consumer brands stand on this issue either.
Good Karma Foods: Plant based food consumers are label readers
But what about the argument made by National Milk Producers Federation communications chief Chris Galen that “some consumers think that use of the term ‘milk’ on an imitator’s package means that the product has the same protein, vitamins, calcium and other minerals that real milk does”?
Doug Radi, CEO of flaxmilk-fueled brand Good Karma Foods, is not convinced, given that “plant based food consumers are label readers.”
As for purchase motivations, he says, “Consumers are selecting plant based milks over dairy milks for many reasons, from lactose intolerance, dairy allergies, environmental concerns, vegan/vegetarian lifestyle and for overall health and balance as consumers continue to trade out animal based calories for plant based calories.”
Michele Simon, executive director of the Plant Based Food Association, also reckons the nutrition issue is “a red herring,” given that there is no legal reason why plant based milks should be nutritionally equivalent to dairy milk, and that this may not even be desirable for all consumers (most Americans aren’t short of protein while some consumers might choose to avoid saturated fat, for example).
As for the lawmakers' claims that failure to crack down on plant milk labels is harming the dairy industry, she says, non-dairy products are still growing at the expense of dairy milk in markets where firms are not allowed to use the term ‘milk,’ so even in countries where there are apparently no grounds for confusion, consumers are still choosing to buy less dairy milk, for whatever reason.
If it were the case that plant-based brands were trying to undercut the dairy industry with cheap imitations, the ‘harm’ argument might carry more weight, she adds, “but plant-based ‘milks’ are generally more, not less, expensive [than their dairy-based counterparts].”
By not acting, the FDA is basically saying, we don’t think this is a priority
And while other countries prefer terms such as ‘soy drink’ or ‘soy beverage,’ that doesn’t mean that the FDA – which is primarily concerned with whether foods are safe and labels are not false and misleading – should follow suit, she says. “Drink’ or ‘beverage’ mean different things to ‘milk.’
“In our house, almond milk is something we pour over cereal, and companies that want to use the term should be allowed, providing there is not a safety issue and consumers are not being misled, and there is absolutely no evidence that they are, which might explain why the FDA hasn’t responded to the dairy industry on this.
“By not acting, they are basically saying, we don’t think this is a priority.”
NMPF: Letter from lawmakers will up the ante
While Galen at the NMPF agrees that the FDA has not prioritized the plant milk issue, however, he says the fact that lawmakers have demanded a response from the agency gives him hope.
“You are certainly correct that NMPF has raised similar concerns in the past, but what is different (and better) now is that this has the attention of members of Congress, so it’s not just a complaint from a dairy industry organization. This hopefully will make the issue less ‘safe’ to ignore.”
He also rejects the assertion that nutritional differences between plant- and dairy-milks aren’t a big issue, arguing that many consumers are laboring under the misapprehension that milk alternatives are not just equivalent to, but superior to, dairy milk in the nutrition stakes, and represent a ‘healthier’ option.
Goat and sheep ‘milk’?
But what about goat or sheep milk? If ‘milk’ must be limited to the lacteal secretions of cows, aren’t these products also breaking the law?
No, argues Galen. “Regarding goat milk (or sheep), NMPF fully recognizes the suitability of a qualifier such as “goat” or “sheep” being used to distinguish among various types of mammalian lacteal secretions.
“However, it is disingenuous to link the name of an animal‐based standardized food with a plant‐based descriptor. A goat actually produces milk; a bean or seed doesn’t.”