Plant-based ‘milk’ row heats up as FDA commissioner says ‘public health concerns’ inform the agency’s renewed interest in dairy standards of identity

In a statement issued before today's meeting in Rockville, Maryland, Dr Gottlieb referred to anecdotal reports of protein and vitamin deficiency in young children fed plant-based milks [although many of these are routinely fortified with vitamins and some, such as soy and pea, contain similar levels of protein to dairy milk].

“Case reports show that feeding rice-based beverages to young children resulted in a disease called kwashiorkor, a form of severe protein malnutrition,” said Dr Gottlieb, citing “public health concerns” as a primary motivator for his interest in the matter. “There has also been a case report of a toddler being diagnosed with rickets, a disease caused by vitamin D deficiency, after parents used a soy-based alternative to cow’s milk.”

Echoing comments made by milk producers - who say the issue is not so much whether consumers think almondmilk is from a cow (they don’t) but that they might think it is nutritionally equivalent – Dr Gottlieb added:

“Because these dairy alternative products are often popularly referred to as ‘milk,’ we intend to look at whether parents may erroneously assume that plant-based beverages’ nutritional contents are similar to those of cow’s milk, despite the fact that some of these products contain only a fraction of the protein or other nutrients found in cow’s milk.”

FDA: It’s not appropriate to unilaterally change our regulatory approach if we have a history of non-enforcement

Right now, the FDA is seeking comment from stakeholders and will post an additional request for information, likely in the late summer or early fall, “with a specific set of questions pertaining to consumer awareness and understanding of the use of milk and other dairy terms on plant-based alternatives, with a focus on nutritional impact.”

After that, he said, it will consider “next steps, which will likely include issuing guidance for industry and a new compliance policy outlining our enforcement approach.”

In the meantime, he added, “We’ll continue to take actions when we become aware of products with misleading labels that have a high likelihood of consumer misunderstanding as to the basic nature of the product, especially when nutrition and therefore public health may be at risk.”

But he cautioned: “We recognize that, as a regulatory agency, it’s not appropriate to unilaterally change our regulatory approach if we have a history of non-enforcement. We also need to closely consider the potential First Amendment issues related to the different uses of these terms.”

NMPF: 'Our hope is that regulatory actions will begin promptly'

Gottlieb's comments were immediately welcomed by National Milk Producers Federation president Jim Mulhern, who said he had "echoed our long-standing public health concerns regarding nutritional deficiencies in plant-based foods bearing the term milk."

He added: “We applaud Commissioner Gottlieb’s assertion that FDA will take regulatory action against products bearing misleading labels. Our hope is that such regulatory actions will begin promptly and not be further delayed by the announced dairy standards review process.”

PBFA: What happened to the free market?

However, Michele Simon, executive director at the Plant Based Food Association (PBFA), said the dairy lobby had “not offered up any credible evidence of consumer confusion” and said its research showed that 78% of cow’s-milk drinkers – many of whom purchase both plant-based and dairy-milk - agree that the word ‘milk’ is the most appropriate term for products such as soymilk and almondmilk.

“As the FDA works to modernize its standards of identity, the agency should reject this attempt by the dairy industry to misuse the regulatory system to favor one industry sector over another. What happened to the free market?

“There’s room for everyone in the marketplace. Our data shows that four in 10 households contain both plant-based and cow’s milk in their refrigerator.”

She added: “Censoring plant-based milk companies would unnecessarily confuse consumers and stifle innovation while doing nothing to help the struggling milk industry. The First Amendment protects companies that label their foods with truthful, non-misleading names. FDA knows they will face a lawsuit if they try to enforce the current milk definition when they have not done so in decades.

“We are sympathetic to the economic challenges that dairy farms face but changing labels won’t help. It’s heartbreaking that dairy lobbyists and policymakers are wasting their time on labeling instead of finding real solutions.”

GFI: Standard of identity for milk applies to 'milk' used alone, not when used with modifiers such as 'almondmilk'

Ken Forsberg, senior policy specialist at The Good Food Institute (GFI) added: "FDA has recognized that a standard of identity applies to the term it defines when that term is used alone, without modifiers. For example, if the label on a package just says 'milk,' with no modifiers, the contents need to be what’s described by the milk standard of identity, namely, the lacteal secretion from a cow.

"The other side of that coin, also recognized by FDA, is that if a label uses a standardized term with a modifier [eg. 'almondmilk'] to make clear to consumers that the contents are NOT what the standard of identity defines, that’s okay."

 If the FDA decides to bar the use of standard-defined terms (eg. milk) with modifiers (eg. almond), he said, "It would be undertaking a large task that goes well beyond almond milk. Rye bread, rice noodles, cashew butter, gluten-free spaghetti, coconut cream -- all these terms and countless others would suddenly become problematic."

Today's FDA meeting is also exploring...

• a standard icon/symbol for the claim 'healthy;'
• a more efficient strategy for evaluating qualified health claims;
• statements or claims that could facilitate innovation to promote healthful eating patterns;
• approaches for modernizing standards of identity;
• possible changes that could make ingredient information more consumer friendly;
• the FDA's educational campaign for consumers about the updated Nutrition Facts Label.

Get the full details HERE.