If FDA permits terms such as almondmilk, its standards of identity are 'meaningless,' says NMPF

By Elaine Watson contact

- Last updated on GMT

The makers of Silk and Almond Breeze have both been targeted in lawsuits alleging consumers are misled by the term 'almond milk'
The makers of Silk and Almond Breeze have both been targeted in lawsuits alleging consumers are misled by the term 'almond milk'
If the FDA were to give a formal seal of approval to terms such as ‘almondmilk’ and ‘vegan cheese,’ it would render federal standards of identity “totally meaningless,” argues the National Milk Producers Federation (NMPF) in comments responding to a citizen’s petition filed by the Good Food Institute (GFI).

In its 20-page comment​on the GFI petition​ (which was filed in March), the NMPF argues that many brands are already flagrantly violating standards of identity while the FDA turns a blind eye:

The current marketplace is characterized by an ‘anything goes’ attitude, where misbranding and mislabeling run rampant, and consumers are consistently short-changed through the purchase of products bearing nomenclature that deceptively promises a certain level of nutrients to be expected with terms like ‘milk,’ ‘cheese’ and ‘yogurt,’ but in reality delivers far less.”

The NMPF also stresses that the issue is primarily one of nutritional equivalency, not whether shoppers think almond milk actually comes from cows (they don’t): “What is completely misleading to the public is the inherent suggestion by the use of word ‘milk’ in these products’ names that they have comparable nutritional and food values to those of dairy milk…

"Preventing such marketplace practices is one of the primary reasons for the existence of food standards of identity.”

It goes on to cite Mintel data indicating that significant numbers of consumers are laboring under the misapprehension that milk alternatives are not just nutritionally equivalent to, but superior​ to, dairy milk.

NMPF: Pressure is mounting on FDA to act

But will the FDA take any notice?

NMPF SVP communications Chris Galen acknowledged that the FDA has not given any indication that it intends to address the plant ‘milk’ debate any time soon, having failed to respond to petitions* filed years earlier on the same topic. But pressure is nevertheless mounting on the agency to act from all sides, he told FoodNavigator-USA.

Jim -Mulhern-HouseAgCtte meeting-March-2017
NMPF CEO Jim Mulhern: "The purveyors of fake milk are all over the map from a nutritional perspective and right now it’s pretty much the Wild Wild West when it comes to these products."

“We recently met with FDA​ to reinforce our stance, and ask the agency to finally step up and take enforcement action.  We didn’t receive any indication they will do so in the near term, but we did reiterate the point that we are not going to stop asking them to enforce standards of identity. Hence our comments today on the GFI petition.”

And while the courts have not generally been sympathetic​ to false advertising lawsuits alleging consumers are confused by terms such as soymilk, a California judge handling one such case** vs Whitewave Foods recently said the plant 'milk' issue fell “squarely​” within FDA’s authority​, putting pressure on the agency to weigh in.

After staying the Whitewave case on primary jurisdiction grounds, judge Lawrence O'Neill added: “This court is not the appropriate forum to decide in the first instance whether almondmilk 'substitutes for,' is 'nutritionally inferior' to, and 'resembles' dairy milk such that it should be labeled 'imitation' milk under § 101.3(e)—an issue which forms the entire basis for plaintiff’s case.” 

Where does the FDA stand on plant 'milk'?

Muscle-Millk

The FDA, say critics, has fluctuated unhelpfully on the plant ‘milk’ issue, querying the term ‘soy milk’ in warning letters to manufacturers Lifesoy​ in 2008 and Fong Kee Tofu​  in 2012, but thereafter maintaining radio silence on the topic despite repeated requests from the National Milk Producers Federation​ (representing dairy farmers) and the Good Food Institute​ (representing plant-based milk, egg, dairy and meat companies) to clarify its position once and for all.

The agency also raised eyebrows in 2015 by telling Hampton Creek it could keep its ‘Just Mayo’ brand​ name​ for its egg-free spread (which does not comply with the egg-based standard of identity for mayonnaise​ ), albeit with minor tweaks to the label, just weeks after accusing it of violating the standard in question.

So what can plant-based brands take away from the Hampton Creek saga?

Was the FDA effectively saying that as long as you include a disclaimer (egg-free/dairy-free) prominently on the label (just as Muscle Milk ‘contains no milk’ and is 'non-dairy') and employ other tactics (words, imagery etc) to ensure that shoppers could be under no illusions about what you’re selling (eg. you’re not being false and misleading), you are OK?

This certainly appears to be how federal judges handling civil lawsuits over plant ‘milk’ vs White Wave Foods and Trader Joe’s (click HERE​ ) appeared to interpret the law, with US district judge Vince Chhabria noting that the word ‘soy’ before ‘milk’ cleared up any confusion as to the contents of the package in question.

GFI: Consumers know and understand terms such as almond milk

According to the GFI’s petition​, terms such as soy milk, coconut milk, and almond milk are now “as familiar and clear to consumers as rye bread, rice noodles, or cashew butter.”

Almond Breeze vanilla landscape
Judge Stephen Wilson recently dismissed a lawsuit taking issue with the use of the term 'almondmilk' on Almond Breeze packaging, adding that the “claim of customer confusion is patently implausible.”

Courts handling false advertising cases over plant ‘milks’ have also pointed out that​ the federal standard of identity for ‘milk’​ - which limits it to lacteal secretions from cows - does not categorically preclude a company from giving food products names that include ​the word ‘milk,’ added the GFI.

For example, in a case vs Trader Joe’s***​,​ judge Vince Chhabria noted that the word ‘soy’ before ‘milk’ cleared up any confusion as to the contents of the package in question: “Trader Joe's has not, by calling its products ‘soymilk,’ attempted to pass off those products as the food that the FDA has standardized (that is, milk).”

As for nutritional equivalency, meanwhile, Stephen Wilson, the judge handling a false advertising case**** vs Blue Diamond Growers (Almond Breeze) in California, did not buy the argument​ that the word ‘milk’ came with a certain set of nutritional expectations, adding: “If the consumer is concerned about the nutritious qualities of the product, they can read the nutrition label…”

 *The FDA is required to respond to citizen’s petitions within 180 days, but often does so with an acknowledgement, rather than a considered response, and can cite competing priorities​ for failing to come to a firm conclusion.

**Melanie Kelley et al v WWF Operating Company, dba Whitewave Services, 1:17-cv-00117

***Amy Gitson et al v Trader Joe’s Company, 3:13-cv-01333

****Cynthia Cardarelli Painter et al v Blue Diamond Growers, 2:17-cv-02235

Click HERE​ to read all stakeholder comments filed in response to the GFI’s petition. 

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