An anatomical assessment from FDA Commissioner Scott Gottlieb could be the beginning of welcome news for the dairy industry about product labeling. But it won’t likely make the almond folks and other plant-based suppliers happy.

“There is a reference somewhere in the standard of identity to a lactating animal, and an almond doesn’t lactate,” Gottlieb said at the Politico Pro Summit on Tuesday in Washington. “The question becomes, have we been enforcing our own standard of identity? The answer is probably not.”

For years, the dairy industry has been seeking to bar plant-based beverages, yogurts, and other products made from ingredients like almonds, soy and oats from being able to use product names like milk and yogurt. Those efforts have taken the form of calls for action from the Trump administration as well as pushing for legislation like the DAIRY PRIDE Act, sponsored by Rep. Tammy Baldwin, D-Wis., which would bar non-dairy products from using dairy nomenclature.

“After years of inaction in response to our complaints about these labeling violations, Dr. Gottlieb’s announcement that the agency is intending to act on this issue is very encouraging,” Jim Mulhern, president and CEO of the National Milk Producers Federation, said in a statement.

Gottlieb said the FDA plans to go through the regulatory process to change FDA’s enforcement guidance. That’s something that he estimates will take “close to a year to get done” and will likely not sit well with some who may raise a First Amendment case against the agency.

“Invariably, we’re going to get sued,” Gottlieb said. “There’s going to be people who make a counter-argument that almond milk should be able to call itself milk, but we do have a standard of identity. I do intend to enforce that.”

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