FDA too busy with ‘competing priorities’ to weigh into plant milk debate

31-Aug-2017 - Last updated on 01-Sep-2017 at 03:54 GMT

A judge handling a lawsuit over label claims on Silk plant-based 'milks' recently said the issue was "squarely" within the FDA

The FDA has finally weighed into the debate over labeling conventions in plant-based foods and beverages, but only in the form of a letter to the Good Food Institute (GFI) explaining that it hasn’t had time to address its petition on this topic owing to ‘competing priorities.’

In its March 2017 petition,the GFI urged the FDA to "provide clarity that such straightforward terms [as 'almondmilk' and 'soymilk'] are acceptable," and to amend federal regulations to “allow the use of qualifying words or phrases before the common or usual name of a food to characterize the main ingredient or component..."

The National Milk Producers Federation, meanwhile, has continued to lambast the agency for “turning a blind eye” as plant-based brands continue to violate federal standards of identity [an argument the GFI says betrays a misreading of the law].

In an eagerly-awaited letterresponding to the petition dated August 29, however, the FDA said it had not come to a decision on the matter.

“We were not able to reach a decision on your petition within the first 180 days of its receipt [the FDA is legally required to respond to citizen's petitions in this timeframe], nor as of the date of this letter, because of other agency competing priorities.”

The agency added: “We will complete our review of your petition and consider any amendments to our regulations as warranted and in the context of other program priorities within the Center [for Food Safety and Applied Nutrition].”

GFI: Interest in plant 'milk' debate is escalating

The non-committal response is perhaps not surprising given that the debate over plant ‘milk’ has been raging for years and the FDA has yet to provide a meaningful response to a petition filed by the Soyfoods Association 20 years ago.

However, many industry stakeholders had hoped the FDA would finally weigh in this year given the recent flurry of lawsuits over plant-based ‘milk' and attempts to ratchet up the pressure by both the dairy industry (via the introduction of the Dairy Pride Act) and the plant-based foods movement (via the GFI’s petition and the creation of the Plant Based Foods Association).

Jessica Almy, policy director at The Good Food Institute, told FoodNavigator-USA that the FDA's response was "disappointing" given that "interest in this topic seems to be escalating."

She also noted that a federal judge recently stayed a lawsuit* hinging on the issue of whether soy/almond-milks were 'imitation' milks, on the grounds of primary jurisdiction, noting that it was “squarely” within the FDA’s remit.

But she added: "More egregious is the fact that FDA has still not responded to the Soyfoods Association's petition, which has been pending since 1997.

"The Good Food Institute submitted a comment to FDA urging the agency to respond to the 20-year-old petition by amending 21 C.F.R. § 102.5 to allow the use of qualifying words or phrases before the common or usual name of a food to characterize the main ingredient or component or to indicate the absence of a nutrient, allergen, or other substance typically found in the food, consistent with our pending petition.

"GFI's petition provides an elegant and modern way for FDA to respond to the original petition."

Michele Simon: FDA inaction underscores fact that consumers aren't confused

That said, the FDA's apparent lack of enthusiasm for weighing into this debate could be read as a sign that it doesn't think consumers are confused by the way plant-based products are currently being labeled, said Michele Simon, executive director of the Plant Based Foods Association.

"FDA has once again indicated that making any changes to the status quo is not a priority for an agency with a lot on its plate. Given the lack of evidence that labels such as soymilk are causing any consumer confusion, this is a logical position, and one that PBFA supports."

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

The FDA, say critics, has fluctuated unhelpfully on the plant ‘milk’ issue, querying the term ‘soy milk’ in warning letters to manufacturers Lifesoyin 2008 and Fong Kee Tofuin 2012, but thereafter maintaining radio silence on the topic, which plant-based brands say leaves them vulnerable to lawsuits, and dairy milk producers (who believe plant ‘milk’ brands are openly flouting the law), find infuriating.