The National Milk Producers Federation, meanwhile, has lambasted the agency for “turning a blind eye” as plant-based brands continue to violate federal standards of identity [an argument the GFI says betrays a misreading of the law].
In a letter sent to the FDA this morning, GFI executive director Bruce Friedrich and policy director Jessica Almy urged the agency to amend federal regulations to “allow the use of qualifying words or phrases before the common or usual name of a food to characterize the main ingredient or component or to indicate the absence of a nutrient, allergen, or other substance typically found in the food.”
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,” noted the GFI, which filed a petition with the FDA in March asking that “FDA acknowledge and accept this fact and practice, not only for the products described above, but for others that may become part of the American diet in the future.
“FDA should provide clarity that such straightforward terms are acceptable.”
A 'simple commonsense resolution'
Confirming that such common names are appropriate “would be a simple, commonsense resolution of the pending Soyfoods petition [The Soyfoods Association demanded clarity from the FDA on this issue in 1997 and has yet to receive a response], and would further respond to requests from the judicial and legislative branches," said the GFI.
“It would also be consistent with FDA’s responsibilities under the Constitution: to regulate the market neutrally and with due respect to the First Amendment rights of food producers to label their products in a clear manner that consumers understand and accept.”
Move would clarify areas of the law that are commonly misunderstood
But why does the FDA need to provide clarity at all, if the GFI believes that existing regulations already allow for terms such as soymilk and almondmilk as common and usual names?
Because it would stop the dairy “industry’s bullying of plant-based competition,” and "pre-empt meritless lawsuits," said the GFI.
According to the GFI’s petition: “Even though the proposed regulation would do nothing more than clarify existing law and practice, such clarification would be helpful to industry and the public…
“This is an area of law that is sometimes misunderstood or misapplied by some... For example, the Act’s standard-of-identity provision is sometimes misread to completely preclude the use of standardized terms in non-standardized food names [whereas the judges handling a soymilk lawsuit vs Trader Joe’s said the fact that there is a federal standard of identity for ‘milk’ which 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”].
Meanwhile, the Food, Drug and Cosmetic Act’s “prohibition on unlabeled ‘imitation’ foods is also misread to cover any similar-looking food that can be used in place of another,” argued the GFI.
“Such misapprehensions of the law are clearly incorrect, but the fact that they persist can still do real harm to competitive industry and the public.”
Rather than dwelling on alleged violations of the standard of identity for milk (a debate that’s been reignited via The Dairy Pride Act ), plaintiffs in recent lawsuits filed by Lee Cirsch at Capstone Law APC focus on the nutritional differences between leading two almondmilk brands and 2% dairy milk, arguing that the former lack the vital nutrients inherent in dairy milk, but are marketed as if they are more nutritious.
Find out how these cases have fared in the courts HERE.
NMPF: 'The agency has consistently turned a blind eye'
The National Milk Producers Federation (NMPF), in turn, is equally keen for the FDA to provide some clarity on this issue, albeit with a different endgame in mind (dairy farmers want the agency to crack down on plant 'milk' labels, which they claim violate federal standards of identity and mislead shoppers).
In a statement issued after a recent meeting with FDA officials in Maryland, the NMPF said: "While FDA’s own standards of identity clearly stipulate that products labeled as 'milk' must come from a lactating animal, the agency has consistently turned a blind eye to violations of these standards, thereby encouraging these imitation dairy manufacturers to inappropriately use that term, as well as other dairy product terms like 'cheese,'yogurt,' and 'ice cream.'"
President and CEO Jim Mulhern added that an analysis of plant-based beverages had found that "none of the imitation products matched the nine essential nutrients found in cow’s milk" with the "strongest discrepancies noticed in amounts of protein, sodium and potassium.
“These beverages are nothing but a factory-made slurry of ground-up nuts or seeds combined with water, sugar, emulsifiers and thickeners."
In a July 31 statement responding to the GFI's letter, he added: "Regardless of what food technologists might try, milk still only comes from mammals... This request is not only inconsistent with US food standards, it’s also inconsistent with regulations used by most other nations, which don’t allow plant-based imitators to co-opt dairy-specific terms."
Read our interviews with Kite Hill, Miyoko’s Kitchen , Daiya , Ripple , MALK , Califia Farms and the Plant Based Food Association to get an alternative perspective on the Dairy Pride Act, plus some legal analysis on false advertising cases surrounding plant-based ‘milk’ HERE and HERE.
"Among U.S. households, 89% use dairy milk, 30% use dairy alternative beverages... In this broader context of consumer purchasing trends for dairy vs. plant milks, regulatory enforcement of non-dairy product terminology seems unlikely to have a significant effect on sales. The trend has left the station."
David Sprinkle, research director, Packaged Facts, July 2017