Updated: Nov 5, 2020
By Sarah Everhart and Allison Venable
The article is not a substitute for legal advice. See here for the site’s reposting policy.
The labeling of plant-based “milks” is a hotly debated topic among producers, regulators and consumers. The issue hits very close to the dairy sector, many of whom cite the proliferation of plant-based “dairy” products as one of the reasons for the sector’s economic hardships. The FDA Commissioner Scott Gottlieb recently commented on the fact that plant-based “milks” did not meet the legal definition or standard of identity of milk. The standard of identity for milk provides in part, “[m]ilk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows…” According to Commissioner Gottlieb, “an almond doesn’t lactate, I will confess.”
The FDA “has concerns that putting the “milk” label on some plant-based products which can vary widely in their nutritional content, is leading consumers to believe that those products have the same key nutritional attributes as dairy products.” Earlier this year, the FDA launched its Nutrition Innovation Strategy. “The Strategy promotes public health through efforts to empower consumers to make better and more informed decisions about their diets and health, fostering the development of healthier food options, and expanding the opportunities to use nutrition to reduce morbidity and mortality due to chronic disease.” As part of the strategy, the FDA is considering approaches to modernize standards of identity for plant-based “dairy” products.
In September, 2018, FDA began soliciting public input to answer the following questions:
How do you use plant-based products?
What is your understanding of dairy terms like milk, yogurt and cheese when they are used to label plant-based products?
Do you understand the nutritional characteristics of plant-based products? Do you know how they’re different from each other? Do you know how their nutritional qualities compare with dairy products?
Although the public comment period was set to end on November 27, the FDA recently announced a sixty-day extension of the public comment period until January 28, 2019. The information gained from this public comment period could influence whether the FDA creates a new standard of identity for plant-based products or changes the requirements for products containing labeling that refers to a traditionally dairy product.
To submit electronic comments, go to https://www.regulations.gov to Docket Folder FDA-2018-N-3522. To submit written comments send to: Docket Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Room 1061, Rockville, MD 20852. All submissions received must include the Docket No. FDA-2018-N-3522 for “Use of the Names of Dairy Foods in the Labeling of Plant-Based Products.”
According to the FDA, while it “supports innovation and consumer choice in the market place”, the standards of identity and labeling requirements for plant-based products must be clear enough that a consumer’s choice is a well-informed one.