Just as its commissioner predicted, the Food and Drug Administration likely will face a lawsuit if it moves forward with pursuing standard of identity enforcement to prevent plant-based products from using dairy-related nomenclature.
When FDA Commissioner Scott Gottlieb discussed potential FDA action on dairy standards of identity as they would relate to plant-based products, he also anticipated a development familiar to anyone who follows government rulemaking.
“Invariably, we’re going to get sued,” he said in July.
That argument wasn’t met with any disagreement; those following this issue can easily predict a legal challenge to any change in food labeling mandates. But by whom?
“You’d be surprised at how many people are eager to volunteer on our behalf given the absurdity of this,” Michele Simon, executive director of the Plant Based Foods Association, said in an interview with Agri-Pulse.
She said she’s already been approached by “a public interest firm that is happy to take this on,” eager to challenge the First Amendment basis for restrictive labeling regulations that could result from FDA action.
The dairy industry has been pushing the FDA for years to act on plant-based beverages and other products using terms like “milk” or “yogurt.” There’s also been legislation introduced on Capitol Hill to bar non-dairy products from using dairy nomenclature. So, for the dairy industry, it was welcome news when Gottlieb said he intended to enforce standard of identity claims.
But a number of things still have to happen. The FDA has not begun any formal rulemaking to change its enforcement practices, leaving cartons labeled as “soy milk” undisturbed for the time being. But the producers and proponents of soy, almond, cashew, and other plant-based milks say they should be in the clear under the framework that already exists.
Jessica Almy, director of policy for the Good Food Institute, argues consumers see milk as a product used in in coffee or a bowl of cereal, for example, and “there’s nothing that’s inherent about a cow that makes it so only cows can produce liquids that function in that way.”
“Lots of products in the marketplace use these compound names like soy milk and almond milk,” she added, specifically referencing rice noodles and rye bread. Both noodles and bread have FDA standards of identity, but “the FDA is not cracking down on either of those two labels, and that’s because consumers know what they’re buying.”
Ricardo Carvajal, a former FDA associate chief counsel who is now a lawyer at Hyman, Phelps & McNamara, says prohibiting speech in labels can be difficult to enforce, but that adding additional clarifying language is a familiar compromise. As an example, he referenced FDA’s 2015 action against the company Hampton Creek, now called JUST, for its “Just Mayo” product.
The FDA sent a letter to the company saying the name “Just Mayo” and using the image of an egg misled customers about its eggless product. The product is still marketed as “Just Mayo," but the egg imagery is gone, and the packaging now notes the “egg-free” product inside.
“There’s a First Amendment aspect to this problem that’s kind of hanging in the background,” he said. “Generally speaking, when you have a problem that can be solved through additional clarifying speech, that is a preferable alternative to a restriction or a prohibition on speech because restrictions and prohibitions on speech are tough to uphold from a constitutional standpoint.”
One thing’s for sure: this debate isn’t going away any time soon. Here are three reasons why: It has long been a priority issue for the dairy lobby, Capitol Hill shows no sign of wanting to take a leadership role on an issue that splits the ag industry, and the emergence of cultured and plant-based meat products could also make the dairy debate a precedent-setting one.Should the FDA take the “additional clarifying speech” route, it’s hard to say exactly what that speech might need to disclose. It’s also not a slam dunk that plant-based milk producers would be open to additional disclosure if they feel that having “almond” or “soy” on their packaging already checks that box.
But Simon says she – and many others in the plant-based community – would welcome a sense of resolution to the matter. She says it’s dragged on long enough, and argues the economic situation in farm country is now being used to support the need for labeling changes.
“Anyone that thinks that this is helping the dairy industry is really misguided,” she said. “I just think it should be said that however almond milk or soy milk happens to be labeled will not help the struggling dairy farmer, and I wish that the people pushing on this issue would actually find more constructive solutions to the economic challenges that industry faces and stop making trouble for our industry when we have nothing to do with that situation.”
Not surprisingly, dairy industry advocates disagree.
“Our efforts to encourage FDA to enforce existing standards of identity on milk and dairy products has nothing to do with the current economic challenges facing dairy farmers. As the leader of this effort, our fight is all about product integrity and milk’s unique nutrient package," says National Milk Producers Federation CEO Jim Mulhern.
“None of the various plant and nut-based products using milk and dairy product names on their labels actually contain any milk or meet existing standards to be called cheese, yogurt, butter or other standardized dairy products. They are imitations, at best. Inferior ones at that. Real milk contains the exact same level of nine essential nutrients in every glass, with the only difference being the level of milkfat a consumer chooses. None of the imitation products being called “milk” match real milk’s nutrition, and in fact the fake products are all over the place in terms of nutrient content.
“I wish our opponents would stop engaging in false arguments and address the fact that their labeling practices are misleading and violate FDA’s standards of identity. Fake dairy products have every right to be in the marketplace. They just shouldn’t be marketed as something they are not,” Mulhern adds.
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