Did MilkPEP's 'Wood Milk' commercial violate the law? One NGO thinks so

The ‘Wood Milk’ campaign, starring actress Aubrey Plaza and created by MilkPEP, makers of the Got Milk?, debuted in April 2023 in response to an FDA draft labeling guidance that permits the use of the word ‘milk’ by plant-based dairy alternatives if nutritional differences are highlighted on-pack.

The advert was described as a ‘satirical piece’ by MilkPEP CEO Yin Woon Rani, who told The Daily Scoop​: “Following the recent FDA guidance suggesting that plant-based alternatives can label themselves as ‘milk’ so long as any nutritional differences to real dairy milk are clearly identified, we wanted to create a standout, satirical piece that created conversation and shines a light on the fact that many people do not know the nutritional value of their beverages - or lack thereof. We recognize that the beverage market is continuing to grow and consumers are increasingly faced with more and more options.”

But a complaint​ submitted by the Physicians Committee for Responsible Medicine to the USDA Office of Inspector General is calling for the advert to be retracted and an investigation into its approval process to be carried out.

The non-profit organization, which also advocates for a plant-based diet and has recommended in the past that dairy should be excluded from the Dietary Guidance for Americans, said the advert was trying to elicit a ‘backlash’ against plant-based milks through ‘disparaging’ advertisements that ‘deride’ plant-based milks. The NPO argues in its complaint that the advert violates laws forbidding federal agricultural promotions from depicting products in a negative light and ‘runs afoul of laws designed to prevent agricultural industries with close ties to USDA from maligning agricultural products sold by competitors’.

“On behalf of its nearly 1 million members and supporters, including 17,000 physicians, as well as other medical professionals, scientists, and laypersons, the Physicians Committee seeks immediate retraction of, and an investigation into the approval process for, this unlawful advertising campaign,” the NPO states in its complaint.

What’s the problem?

"Have you ever looked at a tree and thought, 'Can I drink this?", says Aubrey Plaza in the now-viral advert as she portrays the CEO of Wood Milk. Plaza goes on to say the fictitious woodmilk is bottled 'right here in the forest where the trees hit the dirt, which locks in the flavors, like cherry, maple and of course, mahogany. And if you can't pick your favorite, that's OK - because they all taste like wood.'

The script then delves into how 'woodmilk’ is born, or rather 'squished into a slime that's legal to sell', with Plaza asking at the end 'Is Wood Milk real? Absolutely not. Only real milk is real.' The campaign website​ also mentions that the fictitious product has ‘zero nutritional value’: ‘Wood Milk is 100% fake. And as you know, fake things can't be nutritious...because they're fake.’

The Physicians Committee cites federal law regulations that prohibit the fluid milk checkoff from engaging in ‘any advertising…that may be false or misleading or disparaging to another agricultural commodity’ or make ‘false or unwarranted statements with respect to the attributes of any competing products’.

The NPO wants the USDA to investigate why the campaign was approved in the first place, as according to the guidelines for the USDA Agricultural Marketing Service (AMS) oversight of commodity research and promotion programs, AMS ‘will not approve any advertising deemed disparaging to another agricultural commodity or competing product or in violation of the prohibition against false and misleading advertising’.

The guidelines define disparagement as ‘anything that depicts other commodities in a negative or unpleasant light via overt or subjective video, photography, or statements’. Comparative advertising - e.g. where the cost of two competing products is compared – is permitted, but a claim such as ‘product A tastes better than product B’ is considered disparaging.

The NPO also argues that MilkPEP are violating the law by using checkoff funds ‘to influence legislation or government action or policy’, arguing that the ad campaign had been launched before the comment period for the new FDA labeling guidelines had closed.

‘Far beyond puffery’

DairyReporter contacted the Physicians Committee to ask if the issue with the advert is its USDA-approved status, rather than its messaging per sé.

According to Mark Kennedy, vice-president of legal affairs at the NPO, even outside the context of the laws that govern federal checkoff programs, the messaging of the advert is ‘problematic’.

“Consumer protection agencies tolerate a certain amount of puffery. As one court explained, ‘It is common knowledge, and may always be assumed, that sellers will express favorable opinions concerning what they have to sell,” Kennedy told us. “When this praise is in general terms, without specific content or reference to facts, buyers are expected to understand that they are not entitled to rely literally upon the words. Thus, such statements of opinion, or ‘puffing,’ are non-actionable. One form of non-actionable puffery is a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion.

“But statements that are issued as facts - for example, that a competing product is ‘fake’ nothing more than a ‘slime’ or possessing ‘zero nutritional value’ - go far beyond puffery.

“In the case of plant-based milks, such statements are demonstrably false. Plant-based milks are nutritionally-comparable to dairy milk but without the health risks associated with dairy milk, including increased risk of heart disease and certain cancers. The Wood Milk campaign’s false and misleading statements may violate federal and state consumer protection laws and give rise to unfair competition claims by plant-based milk manufacturers.”

Kennedy said the Physicians Committee had previously petitioned the USDA in 2005, when the USDA ended two advertising campaigns conducted by the fluid milk checkoff and the dairy checkoff. “The ‘Milk Your Diet. Lose Weight’ and ‘3-A-Day. Burn More Fat, Lose Weight’ promotions falsely claimed that dairy products cause weight loss,” he told us. “When the Physicians Committee demonstrated that these claims were not supported by existing scientific research, the USDA halted the campaigns.

“We expect the USDA to take meaningful action, as it has in the past.”

Asked how likely it would be for ‘corrective advertising’ to be ordered, Kennedy said: “Although mandatory corrective advertising is more common in the drug industry, consumer protection agencies periodically require food manufacturers to issue corrective advertising, e.g., Eggland’s Best (eggs) and RJR Foods, Inc. (Hawaiian Punch).”

DairyReporter contacted MilkPEP for comment, but it did not issue a statement and instead referred us to the USDA press office; the USDA is yet to respond. We also contacted the dairy checkoff, who declined to comment on the campaign.

Consumer confusion?

In its draft labeling guidance, the FDA has permitted the use of the word ‘milk’ by plant-based beverages, as long as the nutritional differences are highlighted on-pack. But questions about whether consumers are prone to confusing conventional dairy with plant-based alternatives persist.

A 2018 survey​ carried out by the International Food Information Council Foundation found a low level of consumer confusion, with ¾ of Americans able to understand that plant-based milk products did not contain now’s milk and only less than 10% believed plant-based products contained conventional milk. 

Andrew Binovi, director of government affairs at the Physicians Committee for Responsible Medicine, said: “Despite what the dairy industry claims, consumers aren’t confused about the differences between dairy and plant-based milks. Plant-based milks have been consumed for centuries by cultures around the world. Consumers fully understand that these products do not contain dairy milk and consciously choose to purchase non-dairy beverages for a variety of health or ethical reasons. In fact, when providing guidance on how to label these products earlier this year, the FDA reported that in focus groups, participants showed no confusion about the ingredients of plant-based milks and that they already referred to these beverages as ‘milk’ regularly."

Meanwhile, the FDA proposals on the labeling of plant-based milk alternatives are open for comments until July 31, 2023. Comments should be submitted to Regulations.gov and identified with the docket number FDA-2023-D-0451.