What is milk? This is a serious question, one that you've probably never really put that much thought into. However, this is the question being asked by the cow milk industry in its effort to combat the growing market share lost to plant-based milks.
Webster's Dictionary has two definitions for milk: "a fluid secreted by the mammary glands of females for the nourishment of their young" and "a food product produced from seeds or fruit that resembles and is used similarly to cow's milk." The cow milk industry contends the definition of milk is mutually exclusive and that the former is the true definition of milk. They argue that because the first definition is the true definition of milk, plant-based milks are merely imitations and, as such, FDA should prohibit plant-based milk producers from using the label "milk" on their products.
Of course, Webster's dictionary is not a legal authority when it comes to the meanings of words. The legal definition for milk is as follows: "Milk means the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows, which may be clarified and may be adjusted by separating part of the fat therefrom; concentrated milk, reconstituted milk, and dry whole milk. Water, in a sufficient quantity to reconstitute concentrated and dry forms, may be added."
However, this definition just adds more questions, because according to this definition, only cows can produce milk. The current legal definition makes little logical or scientific sense as cows are not unique in their lactation. Enforcing the labeling standards implied by the legal definition of milk would have impacts outside of just effecting plant-based milk. For instance, under the current law, goat milk isn't to be be considered milk.
Thus far FDA enforcement on the labeling of "milk" products has not been consistent with the legal definition. The FDA allowed non-cow animal and plant based products to use the descriptor milk for their products. The cow-milk industry has petitioned FDA for several decades to more strictly enforce the definition. The dairy industry contends cow-based milk has a distinct nutritional profile when compared to plant-based milks; on this, they are technically correct as no plant-based substitute contains the exact same nutritional contents as cow milk. The dairy industry purports that the use of the word "milk" is confusing to consumers and that all milks need to have a standardized nutritional profile and those not adhering to this profile should be called imitation milk.
Plant-based milk producers recently won a substantial victory in the courts. In the case ruled on Dec 21, 2018, Painter V. Blue Diamond, the 9th Circuit Court of Appeals ruled that "Painter’s complaint does not plausibly allege that a reasonable consumer would be deceived into believing that Blue Diamond almond milk products are nutritionally equivalent to dairy milk based on their package labels and advertising… Almond milk is not an 'imitation' of dairy milk within the meaning of 21 U.S.C. § 343(c) and 21 C.F.R. § 101.3(e). Notwithstanding any resemblance to dairy milk, almond milk is not a 'substitute' for dairy milk as contemplated by section 101.3(e)(1) because almond milk does not involve literally substituting inferior ingredients for those in dairy milk… In addition, a reasonable jury could not conclude that almond milk is 'nutritionally inferior' to dairy milk within the meaning of 21 C.F.R. § 101.3(e)(4), as two distinct food products necessarily have different 'nutritional profiles.' As the district court concluded, it is not plausible that a reasonable consumer would 'assume that two distinct products have the same nutritional content.'"
The was just the latest in an ongoing battle between dairy and plant based milk that has been heating up as of late. As FDA Commissioner Scott Gottlieb announced in July 2018, the agency will look at how the current ''standard of identity" for milk is being interpreted. The ruling has just set the new standard and potentially a large impact on how the FDA labels plant based foods in the future. However, the battle over milk labeling is likely far from over.
[Editor's note: OFW Law Principal Attorney Michael J. O'Flaherty provided this blog piece regarding the need for federal oversight regarding the ongoing trend of class action lawsuits filed against food companies regarding product labeling.]read more
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