FDA Commissioner Scott Gottlieb said the FDA is considering limiting plant-based dairy alternatives from being branded as "milk."

By Lauren Wicks and Zee Krstic
Updated: February 25, 2019

UPDATE, Feb 25, 2019: Whether nut-based drinks will be able to continue labeling their products "milk" is an open question, and the FDA has been soliciting comments from the public, and from a wide variety of stakeholders. 

The National Milk Producers Federation filed a citizens' petition with the FDA on Thursday, proposing that non-dairy options with different nutritional profiles than dairy products should be labeled "imitations," while those with similar nutritional profiles should be labeled as either a "substitute" or "alternative." In the petition they called this "a practical solution to the dairy-labeling problem." 

The NMPF filed the petition even as some stakeholders and courts of law have challenged their argument, saying most consumers wouldn't expect a dairy alternative to have the exact same nutritional profile as its dairy counterpart. Producers of plant-based alternatives say there isn't a problem here to begin with, and voluntary standards are already in place. However, the federation noted there will be negative health implications for Americans if dairy milk is replaced with differing alternatives— saying the fortification of dairy foods with Vitamin D has, for instance, eliminated the presence of rickets in the US. 

This proposal would have a few exceptions, however. Plant-based alternatives that do not replace or substitute for a dairy product as well as products that do not reference the fact they are a dairy substitute (i.e. oat beverage instead of oat milk) would be excluded from the labeling. 

RELATED: Which Type of Milk Is Right For You?

The NMPF believes this is more than an issue of ingredients and nutrition, but also a legal one, as dairy producers do have existing labeling regulations already in place and believe those trying to take their shelf space should as well, according to Food Navigator. The petition's Statement of Grounds argues these requests of the FDA are "justified on statutory, regulatory and First Amendment grounds, and advance FDA’s consumer protection and public health policy objectives."

Brierley Horton MS RD, was surprised to find consumer confusion over deciphering between the health benefits of dairy and plant-based milks was a potential issue. Horton said regardless if labels change or not, it is the health care provider's responsibility to educate consumers on the nutritional discrepancies between dairy and non-dairy alternatives. For those opting for plant-based varieties, she advises looking for fortified options to ensure consumers are getting the full spectrum of nutrients they need each day. 

After initial requests made by Sen. Tammy Baldwin, D-WI, and her proposed Dairy Pride Act, the Food and Drug Administration began considering prohibiting plant-based drinks from being labeled as "milk" in supermarkets and grocery stores. Scott Gottlieb, the FDA's commissioner, discussed the possibility of enforcing pre-established federal code on what constitutes a "milk" product at the POLITICO Pro Summit in Washington, D.C., last summer. 

"You see the proliferation of products like soy milk and almond milk calling themselves milk, but if you look at our standard of identity, there is a reference somewhere in the standard of identity to a lactating animal, and you know an almond doesn't lactate, I will confess," Gottlieb said at the event. "And so the question becomes, have we been enforcing our own standard of identity? The answer is probably not."

But the process of getting an entire industry to stop labeling products like almond milk as "milk" isn't so cut and dry. Gottlieb says that the FDA has a lot of steps to take in order to change standards of identity, and that this change could take up to a year.

More on plant-based, alternative milks:

While current federal definitions of milk are limited to substance produced after "milking of one or more healthy cows," the FDA has rarely asked plant-based milk manufacturers to stop using the word "milk" in branding in the past. In 2008, the federal agency sent out this warning letter to a soy milk producer asking the brand to change the product's name due to legal definitions.

It's unclear if Senator Baldwin's proposal prompted Gottlieb and the FDA to consider such a sweeping change, but we'll have to wait and see if her proposed legislation, along wit actually passes into law. The FDA will soon issue a new guidance document with the new, changed rules of marketing milk, Gottlieb said.

The original article, published April 26, 2018, continues below: 

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Could dairy-free milk products soon be prohibited from marketing themselves as milks? During a Senate Appropriations Committee hearing this week, a senator from Wisconsin asked the Food and Drug Administration to consider asking manufacturers to re-identify dairy-free alternatives for consumers.

Sen. Tammy Baldwin, D-WI, recently introduced a bill known as the "Dairy Pride Act" that would effectively prohibit what we're going to awkwardly call plant-based non-dairy beverage products from being labeled as "milk."

It turns out that the federal definition of the word "milk" is limited to this less than appetizing definition: "The lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows."

The senator's bill argues that, given the definition, plant-based milks should "be considered 'misbranded' and subject to enforcement." When pressed by Senator Baldwin, FDA Commissioner Scott Gottlieb admitted that he had "actively stepped into this issue," according to Food Navigator.

He also said that the agency is collecting information and data on whether or not consumers are led to believe that plant-based milks are nutritionally equal substitutions for traditional dairy products—which has been debated in courts of law several times against producers like Blue Diamond.

But shoppers can all agree that it'd be hard to find any grocery store today that isn't selling at least one plant-based non-dairy beverage product that's labeled with the term "milk." You might wonder if the FDA ever stepped in before to ask producers to change the name of their product?

Very rarely: In 2008, the FDA sent out a formal warning letter to a soy milk producer asking the manufacturer to change their product's name under the same federal definition listed here.

"Therefore, we do not consider 'soy milk' to be an appropriate common or usual name because it does not contain 'milk,'" the letter reads. "We do consider 'soy drink' or 'soy beverage,' however, as acceptable common or usual names for such products."

Could we all soon be pouring "cashew drink" into our cereal bowls rather than what we've all grown to know (and love) as cashew milk? If one thing is clear about the senator and commissioner's exchange on the Senate floor this week, it's that milk is legally defined—and plant-based dairy products do not meet that definition.

We're not too worried about any drastic changes soon, however: Gottlieb admitted that it would be a huge undertaking for the FDA to tackle such a widespread and established product in 2018. The FDA is currently collecting information and data before making any firm decisions in response to Senator Baldwin's request, and given the agency's history in efficiency, we're guessing that it might take a little while.

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