FDA to crack down on the use of the term "milk" in nondairy products

WASHINGTON - The head of the FDA says the Trump administration will move to crack down on the use of the term "milk" for nondairy products like soy and almond beverages.

FDA Commissioner Scott Gottlieb told those gathered at the Politico Pro Summit that his agency will begin crafting a guidance document to provide consistency and clarity for consumers.

U.S. Food and Drug Administration Commissioner Scott Gottlieb said Tuesday that he intends to implement the change over the next year or so.

The agency has long had a definition of milk as being an animal-based product, but it hasn't been enforced. 

"This has been a little bit of a bugaboo to the dairy industry," Gottlieb said during a Politico event in Washington, D.C.

"But we do have a standard of identity, and I intend to enforce that," he said. 

The announcement comes on the heels of the American Dairy Coalition's initiative to advocate for the proper use of federally standardized terms established for the word "milk" on product labels and not to expand the definition to include plant-based dairy alternatives.

"As we see dairy farmers from across the U.S. suffering with low milk and other commodity prices, tariff uncertainty and lack of reliable labor force, this news finally provides a positive movement in the dairy industry," said Laurie Fischer, CEO, American Dairy Coalition. 

The FDA has scheduled a July 26 public hearing on that, and other matters, in Washington, D.C.

Sen. Ron Johnson said he was encouraged to hear that the FDA will finally start enforcing milk marketing standards on non-dairy food products.

"Wisconsin dairy farmers have been asking the U.S. Food and Drug Administration to simply enforce laws already on the books," Johnson said.

Sen. Tammy Baldwin said she was pleased that Gottlieb has finally agreed to address this unfair practice of allowing imitation dairy products to use dairy's good name to advertise their products.

"As the FDA finalizes its enforcement policy, it is critical that it follows its long-standing precedent and protects the use of dairy terms for true dairy products—those derived from the milk our farmers work so hard to produce," said Baldwin, adding that Gottlieb's announcement is a step forward in securing a fair marketplace for dairy farmers.

Baldwin has been a long supporter of dairy farmers, introducing the Dairy Pride Act which calls for stricter enforcement of labeling of non-dairy products with labels associated with real dairy products.

Wisconsin Farm Bureau Federation President Jim Holte was among a group of 37 state Farm Bureau organizations and other agricultural groups that sent a letter to Gottlieb last week expressing displeasure with the agency's lack of enforcement regarding labeling of imitation dairy products using the term "milk".

Holte said members were frustrated with the "status quo of zero enforcement by the FDA".

"We had a good conversation with Commissioner Gottlieb about the process the FDA has in addressing accurate standards of identity, and I think this letter served its purpose in gaining attention to this important issue," Holte said.

In her letter to Gottlieb, Wisconsin Department of Agriculture, Trade and Consumer Protection Secretary Sheila Harsdorf noted that regulators in other countries are enforcing their standards and definitions in not allowing plant-based products to be labeled or marketed as milk.

"It's imperative that the United States do the same in order to not be placed at a competitive disadvantage," Harsdorf wrote. "As a nation, we need honesty and accuracy in the labeling of food products and consistency in enforcement of existing standards."

Before the FDA can implement the change, Gottlieb said, there will have to be public hearings to gather comments.

"It will probably take close to a year to go through that process. But that's what we intend to do," he said.

"Invariably, we will probably get sued, as well, because the dictionary says milk can come from a lactating animal or a nut."

Gottlieb's comments Tuesday were similar to testimony he presented this spring to the Senate, when he acknowledged the FDA has "exercised enforcement discretion" in not holding food marketers to federal standards limiting the use of standardized food terms.

Holte says the FDA's decision to exercise discretion in enforcement has degraded dairy's share of the marketplace and consequently has significantly harmed the financial viability of more than 40,000 farm families.

Sales of milk as a beverage have been in decline for many years, while sales of plant-based beverages are up more than 60 percent during the past five years, according to industry figures.

"Farmers want a fair market place. There is room for consumer choice. We just need to be sure we are not confusing them and misusing standards of identity," Holte said. 

Due to the lack of enforcement of FDA labeling regulations, a cascade of products such as soy, almond, rice, coconut and oat beverages have gained in prominence in the dairy aisle under the guise of milk.

Edge Dairy Farmer Cooperative and the Dairy Business Association which represent more than a thousand dairy farmers and supporting businesses in the Midwest applauded Gottlieb's intent to enforce existing laws.

"Our dairy farmers and processors work hard to produce incredible food. Milk and dairy products—real dairy products—offer almost unbeatable nutritional value. Mislabeling non-dairy foods confuses customers who often make judgments about food based on its name," the groups said. "Words do matter. That is why we have labeling requirements to begin with."

A contentious issue

Critics of the effort to ban the word "milk" from plant-based beverages say it’s more about propping up the dairy industry than clearing up any confusion. 

“No one is buying almond milk, or soy milk, thinking that it came from a cow,” said Matthew Ball, spokesman for the Good Food Institute, a Washington, D.C., group that advocates for plant-based foods.

Good Food says it has gathered thousands of petition signatures that make it clear people know the difference between soy and regular milk. 

Plant-based beverage makers use the word “milk” on their labels because the products are used in a way similar to cow's milk, according to Ball.

People put soy milk on their cereal, for example, just like they would regular milk.

“This is a free speech issue. There’s no way it can be painted as misleading consumers,” Ball said.

Baldwin says non-dairy products are free to develop their own names and develop markets for their products.

"They should not do so by using dairy terms," she said.

The Good Food Institute will sue the FDA if the agency bans the use of dairy terms on plant-based products, according to Ball.

"Almond milk and soy milk are the most clear and best terms for describing those products. For the same reason that we see gluten-free bread and rice noodles on grocery shelves, soy milk and almond milk are perfectly natural product names. Any other finding would confuse consumers and violate the First Amendment, common sense, and FDA’s neutrality in the marketplace," he said. 

Rick Barrett of the Milwaukee Journal Sentinel contributed to this story.