NMPF hails victory over plant-based 'milks' in spending bill, PBFA says claims have 'zero legal significance'

By Elaine Watson

- Last updated on GMT

Plant based 'milks' (picture: Comax Flavors)
Plant based 'milks' (picture: Comax Flavors)
The omnibus spending bill just passed in the House directs the FDA to strengthen and enforce dairy standards of identity in a bid to crack down on plant-based 'imitators,' claim milk producers. But the Plant Based Foods Association says the paragraph in question (contained in a non-binding sub-committee report) has "zero legal significance."

An agriculture appropriations sub-committee report from summer 2017​, which the National Milk Producers Federation (NMPF) claims was voted on as part of this week’s overall spending package, includes the following paragraph:

The Committee is aware of the concerns with labeling certain foods and beverages as a dairy product when the product is plant-based rather than derived from animals. The Committee directs the FDA to develop a standard of identity for dairy products based upon the dairy product terms described in parts 131, 133, and 135 of subchapter B of chapter I of title 21, Code of Federal Regulations within 180 days from the date of enactment of this Act. The FDA should issue guidance to industry on how to implement the standard of identity, including how this standard will be enforced.”

While there are already standards of identity for dairy products such as milk, cheese and yogurt, NMPF SVP communications Chris Galen told FoodNavigator-USA, “they are not being enforced.”

He added: “The real emphasis is to enforce the definition of what is and is not milk.”

In a press release heralding the news as “a major victory for farmers and consumers alike​,” NMPF president and CEO Jim Mulhern added: “It’s high time that we end the blatant disregard for federal labeling standards by marketers of nutritionally inferior imitation dairy products. The language in the congressional budget bill will help ensure action on the matter by FDA after years and years of inaction.”

PBFA: This has zero legal significance

The Plant Based Foods Association, however, said nothing had changed.

Executive director Michele Simon told FoodNavigator-USA: "Once again, National Milk is engaging in deceptive media tactics. They are touting old news – the non-binding report language was conceived as part of the House Agriculture Appropriations bill passed by the Committee in July of 2017. This has zero legal significance."

Jessica Almy, director of policy at The Good Food Institute (GFI), added: "The Dairy Pride Act is languishing in committee, and consumers are voting with their dollars by increasingly buying more plant-based milk and less cow’s milk. Yet, the National Milk Producers Federation is using the passage of the omnibus spending bill to crow about report language from last summer.

"Report language is not binding — but even if this were enforceable, it doesn’t do anything; FDA is directed to develop standards of identity for dairy terms? They did that decades ago. Fully implemented, this provision will have no effect at all."

Where does the FDA stand?

The FDA, say critics, has fluctuated unhelpfully on the issue of whether terms such as 'almondmilk' or 'vegan cheese' violate federal standards of identity or mislead shoppers.

For example, it queried the term ‘soy milk’ in warning letters to manufacturers Lifesoy​ in 2008 and Fong Kee Tofu​​​ in 2012, but thereafter maintained radio silence on the topic, 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.

The agency also raised eyebrows in 2016 by telling Hampton Creek it could keep its ‘Just Mayo’ brand​​ name​​​ for its egg-free spread (which does not comply with the standard of identity for mayonnaise​​​), albeit with minor tweaks to the label, just weeks after accusing it of violating said standard.

It has not weighed in since, but recently signaled its intent to “modernize certain standards of identity”​ in its 2018 strategic roadmap​​.

Nutritional equivalency

In its 2017 comment​​​ on a petition​​​ from the Good Food Institute calling for the FDA to formally recognize terms such as almondmilk, the NMPF argues that the issue is primarily one of nutritional equivalency, not whether shoppers think almond milk actually comes from cows: “What is completely misleading to the public is the inherent suggestion by the use of word ‘milk’ in these products’ names that they have comparable nutritional and food values to those of dairy milk… ​​

"Preventing such marketplace practices is one of the primary reasons for the existence of food standards of identity.”​​

According to the GFI, however, terms such as soy milk, coconut milk, and almond milk are now “as familiar and clear to consumers as rye bread, rice noodles, or cashew butter.”

Plant based 'milk' in the courts

Courts handling false advertising cases over plant ‘milks’ have also pointed out that​​​ the federal standard of identity for ‘milk’​​​ - which limits it to lacteal secretions from cows - does not categorically preclude a company from giving food products names that include ​​the word ‘milk,’ added the GFI.

For example, in a case vs Trader Joe’s​​,​​ judge Vince Chhabria noted that the word ‘soy’ before ‘milk’ cleared up any confusion as to the contents of the package in question: “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).”​​

As for nutritional equivalency, meanwhile, Stephen Wilson, the judge handling a false advertising case vs Blue Diamond Growers (Almond Breeze) in California, did not buy the argument​​​ that the word ‘milk’ came with a certain set of nutritional expectations, adding: “If the consumer is concerned about the nutritious qualities of the product, they can read the nutrition label…”​​

Read more about the debate HERE​.

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