As Deadline Closes, Trade Groups Make Case For “Milk”

Food and beverage industry lobbying groups filed comments with the U.S. Food and Drug Administration (FDA) today, ahead of this afternoon’s deadline for public response on the use of dairy terminology for plant-based products.

The Plant Based Foods Association (PBFA) and National Milk Producers Federation (NMPF) announced their respective filings this afternoon. The two organizations are at the forefront of an FDA decision over whether to allow companies to use terms such as “milk,” “cheese,” “yogurt,” “butter,” and “ice cream” on plant-based products.

The FDA’s existing standards of identity for each of those categories define them as being made from dairy ingredients. However, NMPF officials claim the standards are not being enforced as products billed as “almond milk” and “nut butter” continue to take market share from dairy-based products. The FDA opened a public comment period last year asking if the existing standards should be enforced or revised.

According to the PBFA — an industry trade group with 130 industry members including companies such as Califia Farms, Campbell’s, and Good Karma — a preliminary analysis of the comments posted as of this morning showed “at least” 74 percent were in favor of using the term “milk” on plant-based dairy alternatives.

Speaking with BevNET, PBFA executive director Michele Simon said that number represented comments that were firmly in favor of open labelling for milk alternative products, while there were additional comments that favored plant-based products but were not explicitly relevant to the issue at hand.

“It’s pretty clear that people are overwhelmingly in support of our position,” Simon said.

NMPF senior VP of communications Alan Bjerga, however, told BevNET that the FDA should act in “the interest of the general public.”

“In the end, the FDA needs to make a decision based on what’s in the consumer’s interest and the consumer’s interest is in transparency in the marketplace for truth in labelling,” he said. “The margin really doesn’t matter. This isn’t a quantity issue, this is a quality issue, and quality is clearly on our side.”

At the crux of the debate is whether or not consumers are confused by the products. In September, FDA commissioner Scott Gottlieb commented that the FDA was concerned consumers may believe plant-based milks “have the same key nutritional attributes as dairy products, even though these products can vary widely in their nutritional content.”

The PBFA has argued that there is limited evidence that consumers are confused by plant-based products, noting that most people know the difference between almond milk and cow’s milk and that its consumer polling has revealed support for continuing the use of “milk” on plant-based product labels. However, the NMPF argues that labelling plant-based beverages as “milks” has misled consumers about their health benefits. The organization has cited studies reporting that 77 percent of plant-based consumers believe almond-based drinks have “as much or more protein than dairy.”

“People buy something called ‘milk’ because they think they’re getting a nutritional package,” Bjerga said. “These plant-based products are using these terms to create an association with a nutritional package that they do not have. That’s the confusion we’re talking about.”

If the FDA rules in favor of the dairy industry, PBFA officials are concerned changes to labels could be costly for brands, estimating the cost of new packaging to be between $50,000 to $200,000 per SKU. According to Simon, many PBFA member companies reported it would cost more than $1 million to make the change. Many companies that recently made changes to comply with updated nutrition facts label regulations would be forced to once again make costly updates, she added.

“If there’s inventory they may have to trash that, there’s all of the time and expense that goes into the label changing process, and then there’s all of the collateral materials — it’s not just the label itself that’s on the packaging, but all of the marketing materials they may be using similar language on,” Simon said. “So for a medium sized company it gets very expensive very quickly.”

While Simon said she wasn’t aware of any brands considering a pre-emptive label change, she noted that the debate has caused concern in the industry, citing Quaker Oats’ recent decision to launch a line of oat-based milk alternatives marketed as an “Oat Beverage.”

With public comments closed, the decision now turns to the FDA. According to Simon, PBFA representatives plan to meet with FDA leaders ahead of a final ruling, noting that a previously scheduled meeting was cancelled due to the partial government shutdown.

Should the FDA rule against plant-based products, Simon said the PBFA is ready to mount a constitutional legal battle, suggesting such a move could violate brands’ first amendment right to free speech. The PBFA has also cited legal precedent from a recent Ninth Circuit case in December where courts dismissed a lawsuit arguing dairy-alternative product makers were deceiving consumers.

But the NMPF doesn’t see the free speech argument as a cut and dry case. Bjerga noted that “commercial speech is not regulated in the same manner as political speech,” adding that the dairy industry is amenable to terms like “milk imitation” or labelling that identifies “inferior nutritional qualities.”

“The United States is not the only country in the world that has free speech,” Bjerga said. “We are pretty much the only country in the world that has been allowing misbranding of dairy products. Somehow the Canadians, the Europeans, many countries where people can speak freely have been able to sell oat-based beverages and almond-based beverages without trampling the rights of the people. I think that the United States can probably also come up with ways of protecting the rights and interests of its citizens.”