Sorry, Scott Gottlieb: FDA shouldn’t be allowed to re-define “milk,” no matter what the dairy lobby wants

You can tell where the thinking went in: The emphasis is clearly on how milk products can and can’t be formulated. It wasn’t in working out all the ways the word “milk” would might be used in the marketplace.

What’s my name?

You’ll notice that FDA’s definition of milk only includes cows. But elsewhere in the regulations, FDA sets standards for cheeses, such as mozzarella and romano, that can be made using milk from water buffalo and sheep. The source of that milk, of course, would have to be included on the product’s label. But if processors aren’t allowed to use the word “milk”—the official standard only refers to cows, after all—what are they supposed to call it?

Similar problems arise for things like gluten-free bread and rice noodles. Noodles, the standard says, must be made of “semolina, durum flour, farina, flour, or any combination of two or more of these, with liquid eggs, frozen eggs, dried eggs, egg yolks, frozen yolks, dried yolks, or any combination of two or more of these, with or without water.” And while FDA has a standard for rice flour, its separate from the standard for flour. So rice noodles can’t be noodles. And for similar reasons, gluten free bread can’t be bread. What are we supposed to say? “Long, skinny rice thingies”? “Non-wheat grain clumps”?

It’s absurd. And it’s not just me telling you. At least two courts have found exactly the same thing. In a 2015 ruling on a soymilk case against Trader Joe’s, the US District Court for the Northern District of California declared: “[T]he fact that the FDA has standardized milk does not categorically preclude a company from giving any food product a name that includes the word ‘milk.’ Rather, . . . the standardization of milk simply means that a company cannot pass off a product as ‘milk’ if it does not meet the regulatory definition of milk. 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). “

In a similar case against multiple soy and almond products, the court first explained what the law very clearly sates: If FDA gives a product a name, you have to use it. If not, you use the common name that accurately describes the product. “Here,” the decision continued, “the Court agrees with Defendants that the names ‘soymilk,’ ‘almond milk,’ and ‘coconut milk accurately describe Defendants’ products. As set forth in the regulations, these names clearly convey the basic nature and content of the beverages, while clearly distinguishing them from milk that is derived from dairy cows. Moreover, it is simply implausible that a reasonable consumer would mistake a product like soymilk or almond milk with dairy milk from a cow.”

It’s hard to disagree, though you can expect to hear the dairy industry do so at length in the months to come. People intuitively understand terms like “coconut milk”—and have since the latter 17^th Century if Merriam Webster is to be believed. We aren’t confused (at least not for long) by the likes of beef tea and rocky mountain oysters and spaghetti squash and even city chicken.

We fill our market baskets with products that FDA has never gotten around to defining (kombucha, anyone?) and we do just fine. As even Scott Gottlieb admits, FDA may say milk comes only from cows, but the dictionary says it also comes from nuts.

Here’s the thing: If FDA really wanted to block the use of the word “milk” to describe things like soymilk, they might have had a chance if they had acted before about 1980, when the terminology really started to take off. But they didn’t. They could have been updating the standards of identity all along, adding new definitions as they became necessary, and addressing potential conflicts. But that didn’t happen. It’s as if, having started the project, the agency just walked away from it.

How peanut butter changed the FDA

Actually, that’s exactly what some scholars say happened in the wake of the long and bitter struggle that led to the creation of the peanut butter standard in 1971. You can read all about it here, in a remarkable article by Angie M. Boyce.

Until the late 1950s, peanut butter was simple stuff. Peanuts, salt, peanut oil, and little else. But new technology in the form of hydrogenated vegetable oils offered manufacturers the chance to create a smoother, stabler, easier-to-spread product. The flashpoint came when Jif came to market—a product with enough additives that FDA wanted to call it something other than peanut butter. FDA issued a standard calling for peanut butter to be 90 percent peanuts, the industry pushed back, and soon the issue went to public hearings that in the end generated more than 100,000 pages of testimony.

The flap was perhaps most noteworthy because it saw the emergence of a new kind of food activist in the form of Ruth Desmond, a housewife, grandmother, and founder of the Federation of Homemakers. By all accounts, Desmond was a smart cookie, though willing to play the part of an ordinary grandma who wanted nothing but to keep her grandkids’ lunch as simple as possible. Desmond personalized the standards battle, stood up for a standard that neither FDA nor industry particularly wanted to hear, and contributed to the fact that the standards eventually took 12 years to be finalized. As some historians tell the tale, after the peanut butter battle, FDA decided that standards of identity weren’t the way to go. Instead of trying to legislate recipes and guarantee nutrition through identity, the agency shifted to the style of label-driven regulation that we’re familiar with today.

That style has its own problems, of course, but it does get things done by basically delegating the most intractable conflicts to somebody else—the courts, the consumer, whoever is willing to take them on. And that means FDA itself doesn’t have to resolve all the fights.

Got that, Scott Gottlieb? If not, you will soon, as the nut milk battle takes one of the only paths available to it: Either Congress introduces a statutory standard, which will degenerate into a fiasco, followed by decades of litigation, or FDA will continue to pretend that it’s just enforcing the law, which will lead to lawsuits that it could easily lose. Or, as Gottlieb has suggested, the agency will go back and fix the standards of identity that allowed for all this ambiguity in the first place. Presumably that’s going to happen right after we decide what “natural” means in food labeling, so, say, 2030 or so.

In case you were wondering, I have no dog in this fight. I don’t drink milk—not cow milk, not soy milk, not almond milk. What do I put on my cereal, you ask? I don’t eat cereal. I like oatmeal. Sometimes with berries, but more often risotto style, with butter and some grated romano cheese. Great stuff, romano. It’s made from the lacteal secretions of sheep, which is also great stuff. Somebody, someday, should give it a name.