Altering Dairy Food Labeling Rules Would Cause Further Confusion

The U.S. Food and Drug Administration (FDA) should reject a petition filed by the Good Food Institute (GFI) that would undermine federal standards of identity for food and sanction existing misleading marketing tactics of imitation dairy products, the National Milk Producers Federation (NMPF) said in comments filed.

In the latest salvo over the proper use of long-standing dairy food terms, the vegan advocacy organization GFI submitted a petition earlier this spring requesting that FDA permit manufacturers of plant-based products to use labels that employ standardized dairy terms such as “milk.” In response, NMPF said the petition is at odds with established laws and inconsistent with FDA regulations, which state that foods labeled “milk” must come from an animal.

“GFI’s petition flies in the face of established law and common sense,” said NMPF President and CEO Jim Mulhern. “Nothing has happened in the last 20 years that makes it OK to combine plant or nut powders with water, sugar, emulsifiers, stabilizers, and other chemicals, and call it ‘milk.’ This request is wrong on its merits and is designed to further mislead consumers.”

Mulhern

In its comments, NMPF argued that when plant-based beverages use standardized dairy terms, “they typically do so to imitate milk and other real dairy products, and to benefit unfairly from the reputation that real dairy foods have for nutritional content and quality.” The organization argues that imitation dairy products seek to “bask in the halo” of milk’s healthy reputation in order to attract consumers seeking the attributes offered by real dairy.

NMPF said GFI’s proposed changes to FDA rules would undermine the agency’s standards of identity and create more confusion in the marketplace. Labeling non-dairy products with dairy terminology, the organization added, can mislead consumers into thinking the imitation contains the same nutritional benefits as the real thing. Data from a 2015 Mintel survey found that 49 percent of respondents said they consumed plant “milks” because they thought the products are nutritious. However, according to an NMPF survey of nearly 250 plant-based imitation dairy beverages, none of the products was nutritionally equivalent to cow’s milk.

“Consumers do not understand that plant-based imitation ‘milks’ are not suitable replacements for the natural, nutrient-packed goodness of real milk,” said Dr. Beth Briczinski, NMPF’s vice president of dairy foods and nutrition. “GFI’s request would only exacerbate this misconception.”

NMPF argued that calling these foods what they really are – plant-based beverages – is the “simplest and most certain way to promote honesty and fair dealing in the interests of consumers.” NMPF cited examples of other “beverages” or “drinks” that both comply with federal labeling regulations and clearly state their composition.

NMPF dismissed GFI’s contention that enforcing standards of identity is “anti-competitive,” and said plant-based drinks are welcome in the marketplace so long as they are labeled appropriately.  The group also rejected as specious GFI’s argument that there is a First Amendment conflict in placing limitations on how food products can describe themselves.

“Congress mandated standards of identity for milk and other dairy products more than 80 years ago.  GFI’s argument that it is now suddenly unconstitutional for FDA to enforce laws that have been on the books for eight decades makes no sense,” Mulhern said.  “In fact, the Supreme Court specifically affirmed in the Central Hudson case that the government may regulate commercial speech in a way that protects the public interest. Congress long ago determined that there is an important government interest in avoiding mislabeling of food products and misleading the public.”

Other nations have taken a more proactive stance on this issue, NMPF wrote, pointing out that brands marketing themselves as “almond milk” in the United States do not use that term on their products sold in Canada or Europe.

“We have the same standard as the European Union, the United Kingdom, and Canada when it comes to labeling plant-based dairy imitators,” Mulhern said.  “The only difference is that the FDA does not enforce that standard, while regulators in other nations do.”