Does the Dairy Industry Think Consumers Are Dim-Witted?

Everybody Knows the Difference Between Cow's Milk and Plant-Based Milk ... Don't They?

I don't know if this has passed into your daily news cycle, but there has been a battle brewing for over 20 years about about whether or not plant-based milk--like soy milk and almond milk and hemp milk can really be called milk. The Food & Drug Administration (FDA) is the government agency that is responsible for protecting the public health by ensuring the safety of our nation's food supply. As part of this, they control labeling of food.


As part of that process of ensuring safety and security, the FDA issues "standards of identity" for products. The standard of identity for milk is basically that it is milk from cows.

That's how it always was. But, then the food industry started developing other kinds of milk from nuts and seeds and grains. At about this same time, people who were lactose intolerant were relieved to have a milk product they could drink.


With the development of plant-based milk products, the soy industry submitted a Citizen Petition to the FDA, asking them to recognize “soymilk” as an appropriate name. established through common use. This began approximately 20 years ago. So far, the FDA has not ruled on that Petition. Meanwhile, back at the ranch (couldn’t help it), the dairy industry has been working on the other side of the issue, trying to persuade FDA to prohibit the use of the word “milk” in plant-based non-dairy products. Their premise is that these products don’t meet the definition of “milk” under FDA’s standard of identity, and it causes consumer confusion.

There is actually so much time and money spent (mostly #YourTaxDollarsAtWork) on this issue, that it boggles the mind. Just in the last year:

• In December 2016, Reps. Mike Simpson (D-VT) and Peter Welch (R-ID), and 30 cosigning members of the House, sent a bi-partisan letter to the FDA to urge more aggressive policing of the improper use of dairy terms on labels of plant-based non-dairy products. Why? Theys asserted that it was “misleading and illegal for the manufacturers of these [foods] to profit from the ‘milk’ name.
• In January 2017, Senator Tammy Baldwin (D-WI) introduced the DAIRY PRIDE Act (an acronym for the “Defending Against Imitations and Replacements of Yogurt, milk, and cheese to Promote Regular Intake of Dairy Everyday Act”). The purpose was to amend the Federal Food, Drug, and Cosmetic act to include a provision that a product is misbranded if it called something milk that wasn't cow milk.
• In response, the Good Food Institute started a campaign against the DAIRY PRIDE Act. They circulated and submitted a petition to Congress to dump the Act. Members of the American Soybean Association and the Soyfoods Association of North America (SANA) wrote to members of Congress and sent a letter to the FDA in support of soy milk. In its letter, SANA noted that the term "soymilk" had already been incorporated into a number of government regulations including the nutrition assistance program, federal dietary guidelines, USDA data bases and communications related to the Dietary Guidelines for Americans, National School Lunch Program, the Women, Infants and Children (WIC) program and ChooseMyPlate.
• There were also two new consumer class actions regarding the naming of non-dairy “milks” that were filed at the end of January 2017: Painter v. Blue Diamond Growers, filed in Los Angeles Superior Court on January 23, 2017 and Kelley v. WWF [Whitewave] Operating Co. also filed in California on January 24, 2017. These cases allege that consumers were misled into believing that plant-based milk was nutritionally equivalent to or better than cow milk and that the plant-based product should have been labeled “imitation.”
• In the case against Whitewave, claiming its product "Silk" almond milk was falsely promoted, the Chief Justice put the case on hold because he was of the opinion that the issue had not been officially considered by the FDA or the courts, but it is the FDA's job to decide. So, that case is in limbo.
• The case against Blue Diamond, makers of Almond Breeze almond milk, was tossed out by the Judge. He did not think there was any likelihood that consumers would be misled. His opinion states: "By using the term almond milk, even the least sophisticated consumer would know instantly the type of product they are purchasing. If the consumer is concerned about the nutritious qualities of the product, they can read the nutrition label." (emphasis mine)
• Meanwhile, both the U.S. House of Representatives and the U.S. Senate are contemplating versions of the DAIRY PRIDE Act; the House version is bill H.R.778 and the Senate’s is S.130. If passed, the bill would amend the Food, Drug, and Cosmetic Act to prohibit the sale of any food using the market name of a dairy product, that is not the milk of a hooved animal, is not derived from such milk and doesn’t contain such milk as a primary ingredient. In other words, plant-based milk products could not be labeled milk.

All of this activity for what? I don't have an inside track on what the dairy industry is after, but I suspect that the real reason is that the dairy industry is losing market share. While they are at it, they could also go after peanut butter because peanut butter isn't really butter, and consumers might be misled into thinking that it's really butter. Same with cashew or apple butter.

If the FDA decides that only cow milk can be labeled milk, the administrative expense is high because they will have to change the reference to soymilk in all of the programs it's already listed in. It will require plant-based milk companies to relabel their products, at an expense that will be passed on to consumers and result in another administrative expense when they register all of their new labels with the FDA.

All of these resources spent on an issue that has zero impact on the health and safety of the consumer. And, ultimately, a label change will not save the dairy industry or give them back a lost market share.

Our tax dollars would be better spent if the FDA investigated truly misleading labels, such as "juices" that look healthy because have pictures of fruit on them but really have no fruit and are full of corn-syrup and other sugars and artificial flavors and colors. Or, if they spent more energy examining the safety of products before they go on the market.

The dairy industry could better spend its resources on exploring other markets, or by helping its members to convert their dairy operations to organic. Last I heard, there wasn't enough organic dairy to meet demand. And, according to the USDA, "Consumer demand for organically produced goods continues to show double-digit growth, providing market incentives for U.S. farmers ..."

It's a losing proposition all the way around to chase after unhelpful regulations which, in the end, would cost consumers money and would not save the dairy industry. Instead of making a hail-Mary pass, the dairy industry should be strategic. Go where the demand is. #GoOrganic

Susan Burns

P.S.  To make sure you don't miss an update, click here.