FDA draft suggests plant-based milk can be called ‘milk’: What dairy farmers, legal experts have to say

The battle between dairy milk and plant-based milk producers continues as both industries dispute the use of the word ‘milk’.

A recent draft guidance issued by the US Food and Drug Administration (FDA) brought this argument to the fore with a proposal saying that plant-based milk producers should be able to call their drinks “milk” even if they liquids are made without animals. – derived milk.

Dairy farmers have long defended their right to use the word under the federal Food, Drug, and Cosmetic Act (FD&C Act) that establishes the FDA’s identity standard, which defines “milk” as “the milky secretion, practically free of colostrum, obtained. with the complete milking of one or more healthy cows’.


On Wednesday, Feb. 22, the government agency ruled that plant-based milk companies should be able to use the word “milk” on labels and packaging because most American consumers know that plant-based milk is not made with cow’s milk or any another. other milk of animal production.

The FDA’s draft guidance went on to explain that the public already refers to plant-based milk as milk while also recognizing the plant-based source it comes from, such as “almond milk” and “soy milk.”

Consumers reportedly prefer the term “milk” over plant-based “beverage,” “beverage” or “juice,” according to internal and third-party focus groups cited by the FDA.

Dairy farmers and producers say no to ‘milk’ in plant-based drink labeling

The National Dairy Producers Federation (NMPF) in Arlington, Virginia, does not seem to agree with the FDA’s stance on allowing plant-based milk to use the word “milk” on product packaging.

“The decision to allow such beverages to continue to use inappropriate dairy terminology violates FDA’s identity standards, which clearly define dairy terms as animal-based products,” said Jim Mulhern, NMPF president and CEO.

“We reject the agency’s circular reasoning that FDA’s past inaction to enforce labeling now justifies labeling such beverages ‘milk’ by designating a common and common name,” Mulhern continued. “Past inaction is a bad precedent to justify present and future inaction.”


Mulhern noted that the NMPF recognizes the voluntary nutrient declaration outlined in the FDA proposal as “a step toward labeling integrity” because it would show the nutritional differences between animal-based and plant-based milk, but the dairy industry believes that dairy terms should be reserved for dairy producers.

“Because the FDA’s proposed guidance is meaningless without action, enforcement will be necessary to ensure that this limited progress is reflected on grocery store shelves,” Mulhern said.

Can plant milk be called milk? Legal experts are involved

Laurie Beyranevand, director of the Center for Agriculture and Food Systems at Vermont Law School in Royalton, Vermont, told FOX Business that the debate over the term “milk” has given the FDA an opportunity to review its identity standards.

“Not all foods have identity standards, but some common ones like milk do,” Beyranevand said. “The FDA developed them under its statutory authority to prevent false and misleading labeling to ensure that consumers are not misled about the products they purchase and to prevent food manufacturers from adulterating cheap products by substituting less expensive ingredients.”

The FDA established an identity standard for milk in 1973.


“Research has shown that consumers can tell the difference between plant-based, non-dairy and animal milk,” Beyranevand said. “This is an important message for the FDA to review the identity standards to be more inclusive of alternatives that consumers clearly want to buy.”

Cows are the top dairy animal in the U.S. Other dairy animals include goats, sheep, and buffalo. (iStock/iStock)

Katherine Ann Rubino, chair of the Life Sciences Practice Group at Caldwell Intellectual Property Law in Boston, told FOX Business that plant-based milk producers being allowed to call non-dairy milk a form of milk could raise intellectual property concerns about the laws. about trademarks.

“The legal standard here is whether consumers will be confused or deceived in the marketplace by purchasing plant-based products labeled ‘milk’ that actually do not contain dairy (and) whether that will influence their purchase decision,” Rubino said.

Rubino explained that trademark law is focused on protecting the rights of consumers and protecting them from misleading marketing strategies by naming foods, but the litigation over whether the term “milk” can be used on plant-based dairy products not yet fully clarified.

“A court will likely find that terms such as ‘almond milk’ or ‘soy milk’ are generic terms, meaning that because of its popularity in the marketplace, it has become synonymous with a general category of products and therefore consumers are not likely to to be confused,” Rubino continued. “Plant milk has been around for many years and seems to have gained popularity in recent years.”


Milk or not: What branding and marketing experts have to say?

Matt Yanofsky, founder of The Moment Lab, a boutique marketing firm specializing in consumer brands that operates out of Los Angeles, Montreal and Toronto, told FOX Business that the plant-based milk industry benefits from using the word “milk” . in the packaging and labeling of the product.

“Calling it ‘milk’ allows consumers to switch to something that’s familiar and gives a sense of normalcy,” Yanofsky said.

“This is marketing at its finest, as almond milk, soy milk, coconut (and other plant-based) milk brands are able to latch onto the legacy milk has created for itself across America,” he continued.

Various forms of milk of plant origin

Plant-based milk can be made with a variety of nuts, legumes, seeds and grains. (iStock/iStock)

Amanda Guerassio, a branding specialist who offers consulting and product naming services through her company, Studio Guerassio in Austin, Texas, told FOX Business that the word “milk” should be open to plant-based milk brands.

“I think for that matter, if the plant product is meant to be a substitute or an alternative to dairy or cow’s milk, then, yes, it should be able to be called milk,” Guerassio said. “I think it’s actually providing clear messages to consumers rather than trying to come up with a word other than ‘milk’.”


It agreed with the FDA’s proposed guidance that plant-based brands that choose to use the word “milk” on the package must include language that makes it clear that the product is “plant-based,” “non-dairy,” and/or “dairy.” -Free.”

The plant-based industry believes otherwise

Jennifer Stojkovic, founder and CEO of the Vegan Women Summit, a New York-based media and events organization that shares industry knowledge, told FOX Business that sales of plant-based milk have increased in the U.S. and around the world.

“The dairy industry’s legal battle over plant-based milk and the naming of dairy products has been waged in many countries around the world as a last-ditch effort to combat growing plant-based consumption,” Stojkovic said.

He said “many studies” have shown that consumers are not confused when they see plant-based dairy products with labels that say milk, as noted in an empirical study authored by the University of Louisville and Louis D. Brandeis School of Law in 2020.

Almond milk in the cup next to the dairy cow

The US Food and Drug Administration is proposing to allow plant-based milk producers to call their products “milk” despite its zero dairy content. (iStock/iStock)

“In fact, most of these (dairy) terms have been used in the culinary world for hundreds of years – just think ‘coconut milk’ or ‘peanut butter,'” Stojkovic continued.


Jaime Athos, president and CEO at Tofurky, a maker of plant-based turkey substitutes in Hood River, Oregon, told FOX Business that many business leaders in the plant-based industry are pleased that the FDA’s draft guidance says plant-based milk can be called “milk”.

“However, the plan to require additional (voluntary) nutrient disclosures on plant-based milk packaging is unfair to these companies and insulting to consumers’ intelligence,” Athos said.

The FDA proposal recommends that manufacturers of plant-based milk voluntarily submit nutrient claims that describe how the product differs from animal-produced milk in terms of vitamins, minerals, fat and cholesterol, to name a few.

Comparative nutrient statements on plant-based milk packages would help consumers make informed decisions about their food choices, according to the FDA.

“Consumers are not confused about the origin of products when they buy plant-based products,” said Athos. “They choose plant-based as an expression of their preferences. They already know very well that plant-based milk is different (from) animal milk and that the distinction is why they choose it.”


The Plant Based Foods Association (PBFA), a national trade association representing leading plant-based food companies, echoed similar sentiments in a press release issued Wednesday, February 22. Athos is a board member of PBFA.

PBFA praised the FDA for recognizing that consumers are choosing plant-based milk as a substitute for dairy milk, but the group disagrees with the FDA’s draft guidance on voluntary nutrient claims because it could become burdensome for plant-based milk producers.

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