In a battle with potentially industry-wide consequences, dairy producers have been beseeching the Food and Drug Administration (FDA) to clamp down on what they say is plant-based companies’ improper use of the word “milk,” claiming that they are deceiving consumers who can’t tell the difference between nut juice and the real thing. But if that’s indeed true, then FDA, which regulates 80 percent of the nation’s food supply, doesn’t have much evidence to go on.
Food Dive’s Cathy Siegner reports that in a just-released analysis, a consulting group found that more than three-quarters of people who commented on this issue to FDA believe that plant-based companies should be able to use dairy terminology on products that aren’t conventional dairy—that is, if they’re derived from plants like soybeans, tree nuts, or peas, rather than an animal.
The study—which reviewed more than 7,000 comments that FDA received as part of a rule-making process—was commissioned by the Plant Based Foods Association, which is headed by executives from Tofurky, Blue Diamond, and Kellogg’s, among other organizations. That sample size sounds a little sketchy—it’s less than 60 percent of the 11,900 comments FDA had received by the end of January—but the trade association claims “no known bias” in the comment selection process. The comments were chosen at random, according to PBFA.
According to the analysis, 76 percent of commenters are in favor of allowing plant-based substitutes to use dairy terms, 13 percent believe the opposite, while the remaining comments were inconclusive. Over half of the small percentage who opposed labeling plant-based alternatives “milk” identified themselves as dairy farmers, or family members.
How’d we get here? Last September, FDA began soliciting public comments from consumers about what they think the terms “milk” and “cheese” mean when they’re on a not-dairy product. The docket, which is here, now numbers more than 14,000 comments. The agency had been considering restricting plant-based companies from using those words on product labeling by updating official federal definitions.
“We’re interested to know if consumers are aware of, and understand, the nutritional characteristics and differences among these products—and between these products and dairy—when they make dietary choices for themselves and their families,” then-FDA Commissioner Scott Gottlieb said in a statement.
Just before opening the inquiry, Gottlieb conceded that his agency hadn’t been enforcing those federal definitions, known officially as standards of identity. “The answer is probably no,” Gottlieb said. “There is a reference somewhere in the standard of identity to a lactating animal, and, you know, an almond doesn’t lactate, I confess.” As we’ve pointed out, relying on standards of identity to go after food companies is specious. Those definitions are not so much about describing exactly what a product is or isn’t, so as much as they set parameters for how far manufacturers are allowed to go in monkeying with those products.
The dairy industry has been petitioning the FDA to do something about animal-free dairy substitutes for more than two decades. Those efforts have gained traction, though, as traditional dairy milk sales have plummeted, dropping by 15 percent over a five-year period. In that same timespan, plant-based milk-substitute sales increased by 61 percent.
Dairy producers don’t rely on a financial hardship argument, though, when petitioning FDA. Instead, they claim that plant-based products deceive consumers into believing there is a nutritional equivalency. Those exact same arguments are also being made by senators (many of whom hail from cow-heavy states), both in the subtly named DAIRY PRIDE Act, or in a letter they wrote in March beseeching Gottlieb to protect “dairy’s good name.”
Those arguments, which have been rejected by California courts, also appear in the comments in the docket. Of the 482 comments from dairy farmers and families analyzed in the study, 91 percent said current labeling confuses or mislead consumers, and 94 percent said that consumers believe the substitutes to be nutritionally similar.
Without a commissioner in place, Siegner asserts, the FDA is unlikely to make a decision on labeling any time soon. When it does, though, it could blow the doors open on other long-simmering labeling disputes, from cauliflower rice to lab-grown and plant-based meat. Buckle up.