FDA ups ante in plant ‘milk’ debate: ‘We’re on a fast track to take a fresh look at labeling'
In a statement, FDA commissioner Dr Scott Gottlieb said the agency recognized that “some consumers may prefer to use plant-based products instead of dairy products for a variety of reasons, including an allergy or lifestyle choice.”
But echoing some milk producers - who claims the issue is less about whether consumers think almondmilk is from a cow (they don’t) but whether they think it is nutritionally equivalent to cow's milk – Dr Gottlieb added: “We must also ensure that the labeling of such products does not mislead consumers, especially if this could compromise their health and well-being.
“And, today, we’ve taken the first step in this process by issuing a Request for Information in the Federal Register to solicit comments and feedback from the public to gain more insight into how consumers use plant-based alternatives and how they understand terms like “milk” or “cheese” when used to label products made, for example, from soy, peas or nuts."
The RFI includes questions about the size of the plant-based dairy market, how products are labeled and merchandised, and what direct or indirect messages brands in the space are giving out about the nutritional properties. The FDA also wants data on why consumers buy them, how they're used, whether they think they are healthier and how consumers perceive or understand 'soy milk' vs 'soy-based beverage' or 'soy drink.' The deadline for submitting comments is late November.
NMPF: 'Just adding plant protein, calcium and a few other ingredients to water does not make it milk'
The move was welcomed by Jim Mulhern, president and CEO of the National Milk Producers Federation, which has accused the FDA of turning a blind eye for years to alleged violations of federal standards of identity (which limit the use of the term ‘milk’ to the lacteal secretions of cows):
“We are pleased that after years of engagement with FDA, the agency is finally addressing our concerns about how these plant-based products are inappropriately marketed to consumers.”
Anticipating pushback from plant-based brands that fortify their wares with vitamins, proteins, or other nutrients, he added:
“A food identified by a standard of identity is so much more than just a collection of nutrients. A standardized dairy food, like milk, yogurt or butter, is defined by its inherent characteristics including how and where it is sourced, and its sensory attributes and performance properties. Quite simply, just adding plant protein, calcium and a few other ingredients to water does not make it milk.”
PBFA: Consumers are sophisticated and well informed about plant-based foods
However, Michele Simon, executive director at the Plant Based Foods Association (PBFA), told FoodNavigator-USA that US consumers are "sophisticated and well informed about plant-based foods" and are "keenly aware of why they are making these choices and do so for many reasons: sustainability, health, allergies, ethics, variety and taste."
Growth of plant-based dairy alternatives is significantly outpacing that of grocery overall, thanks to an innovative industry and shifting consumer tastes, she added:
"We urge the FDA to adopt policies that encourage this innovation, not stifle it, and that will allow consumers to make informed choices. Plant-based food producers offer options that consumers want and recognize. If those foods are forced to be identified by obscure, contrived names that consumers are unfamiliar with, innovation will be stifled, and consumers will be deprived of the choices they deserve."
PBFA research shows that 78% of cow’s-milk drinkers agree that the word 'milk' is the most appropriate term for products such as soymilk and almondmilk, she revealed.
"For our members, and as the data shows, for many consumers, the word describes the functionality of the product. Consumers know the difference between a cashew and a cow. The dairy lobby has not offered up any credible evidence of consumer confusion. In fact, our data shows that 4 in 10 households contain both plant-based and cow’s milk in their refrigerator. There’s clearly room for everyone in the marketplace."
Click HERE to read the PBFA’s voluntary standards for plant-based milks.
NPA to FDA: Don't restrict commercial free speech
"Consumers deserve access to accurate and meaningful information about the products they use each and every day. As the FDA considers making changes to the ways many popular products are labeled and branded, we urge the agency to also consider the impact they could have on commercial free speech.
"Before placing restrictions on commercial free speech, the government must prove there is a substantial risk to consumers. We are optimistic the FDA’s process will lead to an outcome that both protects consumers and ensures the producers of natural products and plant-based foods are not burdened with unnecessary regulations. We look forward to working with the FDA on this issue and submitting formal comments.”
Daniel Fabricant, Ph.D., president and CEO, The Natural Products Association
Bruce Friedrich, executive director at the Good Food Institute (GFI) – which promotes plant-based and cell-cultured foods - told us in July that he too was "in complete support of commissioner Gottlieb’s desire to ensure that consumers are informed, to foster competition on behalf of more nutritious foods, and to modernize the standards of identity. All three of these goals point toward explicitly allowing terms like milk or butter or yogurt modified by clear words like ‘soy’ and ‘almond.’
"Once FDA has considered all of their options, we believe they will grant our rulemaking petition [filed in March 2017] which simply asks FDA to clarify that commonsense modifiers are allowed when naming new foods."
What do the courts say about terms such as 'almondmilk?'
Courts handling false advertising cases over plant ‘milks’ have argued 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.’
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, 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…”
