Got Milk? A Tale of 2%

By Saxon Bryant
​Saxon Bryant is a Sophomore at the University of Pennsylvania studying Public Policy in Wharton and Political Science in the College of Arts and Sciences.

On September 28th 2018, Food and Drug Administration (FDA) Commissioner Scott Gottlieb released a public statement regarding modernizing standards of identity and the use of dairy names for plant-based substitutes. [1] This announcement was accompanied by a request for public comment which closed on November 27th. In other words, the FDA asked the American people, “If milk comes from a plant, should you still be able to call it milk?”

Milk, as defined by the FDA, is “the lacteal secretion...obtained by the complete milking of one or more healthy cows.” [2] While this definition may sound simple, recent innovations in the beverage industry have presented new considerations. Several companies now use various plants or nuts to create milk. For example, by grinding almonds in a blender with water and then straining out the almond pulp, what is left is almond milk. Plant-based milks have grown tremendously in the past few years in both popularity and sales. The University of Virginia notes, “Worldwide sales of non-dairy milk alternatives more than doubled between 2009 and 2015, reaching $21 billion.” [3] In the US alone, sales of milk alternatives reaches over $16 billion in 2018. [4]

This incredible success has lead companies in the non-dairy milk space to try and redefine America’s favorite breakfast beverage. The dairy farming industry has pushed back against the recent movement for more liberal definitions of milk. [5] Tom Balmer, Vice President of the National Milk Producers Federation (a pro-dairy lobbying group), testified before the FDA that plant-based products use the name “milk” as a deceitful marketing tactic to invoke the positive traits typically associated with milk or cheese such as nutritional value. [6] On December 2016, 32 members of Congress, all from big-dairy producing states, wrote a letter to the FDA calling the use of the term “milk” by non-dairy manufacturers to be “misleading and illegal” and urging the FDA to take action to protect dairy farmers. [7]

In terms of actual health benefits, all plant based milks tend to be as healthy, if not more so, than their dairy counterparts. Some skeptics point out that a glass of say, soymilk, does not contain the same number of calories or protein as cow’s milk and they are not entirely wrong. “Non-dairy milk beverages are perceived to be healthy but the products available vary remarkably in their nutritional profiles.” Compared to equivalent quantities of dairy milk, most plant-based milks have low protein, mineral, and vitamin content and the quality of the protein is less than it is in cow's milk. [8] However, even if the nutritional profile of alternative milks looks different, to many consumers that is exactly the point. Approximately 65% of the human population has some form of lactose intolerance. [9] Plant-based milks are all lactose free and offer a dairy-free alternative to hundreds of millions of people.

Other nations have dealt with these conflicts in a different manner. The European Court of Justice ruled on June 14th, 2017, that purely plant-based products cannot, in principle, be marketed with designations such as ‘milk’, ‘cream’, ‘butter’, ‘cheese’ or ‘yogurt’, which are reserved by EU law for animal products. [10] The Court’s rationale was that such labels could be confusing to consumers.

Legally speaking, here in the United States the road ahead for the dairy industry looks tough. While the government does have definitions for all standardized foods items, known as standards of identity, these are intended to protect the consumer from physical or financial harm. However, these standards are malleable and open to change. For example, the F.D.A. recently allowed Hampton Creek to label its product “Just Mayo” despite the legal definition of mayonnaise requiring that the product contain eggs. [11]

The judicial system also has a strikingly clear precedent. In Ang v. Whitewave Foods Company (2013), the Federal District Court of San Francisco dismissed a proposed class-action lawsuit that claimed that almond, coconut, and soy milk were mislabeled because they do not come from cows. Judge Conti found that the claim “stretches the bounds of credulity. Under Plaintiffs' logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.” [12] In Gitson v. Trader Joe’s Company (2015), Judge Chhabria dismissed allegations that Trader Joe’s had violated standards of identity by using the term “soymilk,” explaining that the mere fact that a standard of identity for milk exists, “does not categorically preclude a company from giving any food product a name that includes the word milk” and that “Trader Joe’s has not, by calling its products ‘soymilk,’ attempted to pass off those products” as cow’s milk. [13] In Painter v. Blue Diamond Growers (2017), Judge Wilson dismissed a lawsuit alleging that almond milk marketing was misleading on the basis that consumers falsely believed that almond milk had the same nutritional profile as dairy milk. “No reasonable consumer could be misled by Defendant’s unambiguous labeling and factually accurate nutrition statements,” his opinion read. “By using the term ‘almond milk,’ even the least sophisticated consumer would know instantly the type of product they are purchasing.” [14]

While it is clear how the courts think about this issue, should the FDA decide to change their definitions or standards for milk or non-dairy products then countless companies will need to begin rethinking their marketing strategy. Ultimately, the question “What is milk?” is a question we as consumers will have to decide.

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] Statement from FDA Commissioner Scott Gottlieb, M.D., on modernizing standards of identity and the use of dairy names for plant-based substitutes, September 27, 2018.
 [2] Code of Federal Regulations Title 21, Chapter I, Subchapter B, Part 131, Subpart B §131.110
[3] Bridges, Meagan. “Moo-ove Over, Cow’s Milk: The Rise of Plant-Based Dairy Alternatives” Nutrition Issues In Gastroenterology, Series #171
[4] Nielsen & PBFA, “Sales value of the plant-based foods market in the United States in 2018, by category (in million U.S. dollars)” Statista, June 2018.
[5] Charles, Dan. "Soy, Almond, Coconut: If It's Not From A Cow, Can You Legally Call It Milk?" NPR. December 21, 2016. Accessed April 04, 2019. https://www.npr.org/sections/thesalt/2016/12/21/506319408/soy-almond-coconut-if-its-not-from-a-cow-can-you-legally-call-it-milk.
[6] Statement of Tom Balmer, Executive Vice President  National Milk Producers Federation Before the Food and Drug Administration, July 26, 2018.
[7] Letter to FDA Commissioner Califf from 32 members of Congress, December 16, 2016. https://www.nmpf.org/wp-content/uploads//Welch-Simpson%20Letter.pdf
[8] Singhal, Sarita, Robert D. Baker, and Susan S. Baker. "A Comparison of the Nutritional Value of Cowʼs Milk and Nondairy Beverages." Journal of Pediatric Gastroenterology and Nutrition 64, no. 5 (2017): 799-805. doi:10.1097/mpg.0000000000001380.
[9] "Lactose Intolerance - Genetics Home Reference - NIH." U.S. National Library of Medicine. https://ghr.nlm.nih.gov/condition/lactose-intolerance.
[10] Verband Sozialer Wettbewerb eV v TofuTown.com GmbH, ECJ(2017)
[11] Strom, Stephanie. "F.D.A. Allows Maker of Just Mayo to Keep Product's Name." The New York Times. December 21, 2017. https://www.nytimes.com/2015/12/18/business/fda-allows-maker-of-just-mayo-to-keep-products-name.html.
​[12] Ang v. Whitewave Food Company, N.D. Cal (2013)
[13] Issue 587, 12/11/2015.
[14] Cynthia Cardarelli Painter v. Blue Diamond Growers, C.D. Cal. (2017)
Image source: https://medium.com/nestle-usa/explore-the-power-of-plant-based-nutrition-a5c8687c41bb