In a public comment responding to the FDA’s request for information on the use of dairy-derived terms in plant-based products, Chobani senior director of health & wellness Dr Robert Post said: “The improper – and illegal – use of dairy terms on plant-based alternatives poses a public health risk, in that this terminology may confuse consumers and cause them to displace the nutrients that would otherwise be provided by dairy foods.”
Chobani – which has just launched a new coconut-based line that does not feature the word ‘yogurt’ on pack - believes that, “Terms such as ‘milk,’ ‘cheese,’ ‘yogurt,’ and ‘cultured milk’/’kefir’ should be used on or for dairy products only, to align with existing laws and regulatory standards… as well as DGA definitions and recommendations for this food group,” argued Dr Post.
“Plant-based products, meanwhile, should use different terms and statements of identity that accurately convey their unique role in the diet, which is distinct from dairy foods.”
Chobani: ‘The improper – and illegal – use of dairy terms on plant-based alternatives poses a public health risk’
The substitution of dairy products with plant-based alternatives during infancy and childhood, he went on, “is a highly concerning health situation, as there are no national dietary recommendations for non-dairy substitutes aside from fortified soy beverages, and these products are likely to displace intake of recommended foods and beverages for good health.”
He also cited a 2016 study of 30 brands of plant-based milk alternatives published in the journal Thyroid, which found they typically contained less iodine than dairy milk: "Individuals with restricted dairy product consumption may therefore be at risk for inadequate dietary iodine intake.”
As for protein, said Dr Post, “protein content is naturally higher in dairy food products, but the protein quality is also superior,” while “fortificants like tricalcium carbonate [that are added to some plant-based milks] are not always as bioavailable as naturally-occurring vitamins and minerals [in dairy].”
Danone North America: ‘Consumers are not choosing between plant and animal products, they are choosing both plant and animal products’
However, in its public comment, Danone North America VP federal and industry affairs Christopher Adamo said "recent suggestions by other stakeholders that plant-based products using the Naming Convention [eg. almondmilk combined with a qualifier such as 'dairy-free' or 'plant-based'] may prevent people from making healthier choices are troubling and not based on facts.”
The company - which owns the Silk, So Delicious, and Vega dairy-free brands in the US and has recently launched an almondmilk-based yogurt alternative called Good Plants and a coconut-based yogurt alternative under its Oikos brand – said current labeling conventions are “consistent with regulations and case law.”
‘The trend toward more consumption of plant-based foods should be embraced’
The courts, added Adamo, have repeatedly found that consumers are not confused by terms such as almondmilk (they know it’s not from a cow), and that there is no legal requirement for plant-based milks to deliver exact nutritional equivalency to dairy milk.
“The trend toward more consumption of plant-based foods should be embraced and not subverted by requiring confusing, unfamiliar labeling requirements… The vast majority of consumers are dual users of both plant and animal-based products–thus consumers are not choosing between plant and animal products, they are choosing both plant and animal products.
“As the proud owners of leading brands such as Dannon dairy yogurts and Horizon Organic dairy milk, we agree that dairy milk has strong nutritional qualities, and we also believe that plant-based products provide important nutritional benefits. In fact, even federal policy supports the basic notion that plant-based products contain valuable nutritional benefits and can help support healthy dietary patterns among a diverse population.”
According to unpublished research conducted by the Plant Based Foods Association,"adults are the primary consumers of plant-based milks in the household, while children under 13 are significantly more likely to consume cow’s milk.”
CSPI: FDA should keep terms like ‘almondmilk’ but mandate disclosures if plant-based products don’t match dairy on nutrition
The Center for Science in the Public Interest, in turn, argued that rather than banning the terms ‘milk,’ ‘yogurt,’ or ‘cheese’ on plant-based products, “FDA should require a front-of-package disclosure on [plant-based] products that do not provide the levels of key nutrients typically found in dairy milk, yogurt, or cheese— naturally or by fortification.”
The key nutrients are vitamin D, calcium, potassium, protein, and vitamin B-12, says the CSPI.
This presupposes that consumers are entitled to expect nutritional equivalency from 'milks' derived from different sources, a theory to which the Ninth Circuit recently gave short shrift. However, such a disclosure would encourage manufacturers of plant-based milks to fortify their wares, claimed the CSPI:
“[This] would clearly inform consumers about the nutritional differences between dairy and plant-based versions of products, as well as the nutritional differences among various plant-based products.”
What are standards of identity for?
Multiple commentators noted that the federal standard of identity for milk (limiting it to the lacteal secretions of cows) was designed to address fraud and economic adulteration, not to prevent plant-based alternatives from referring to standardized terms (ie. 'milk') in their marketing altogether.
“Yet some voices in industry have advocated for FDA to weaponize identity standards against innovative products, contrary to this historical understanding,” argued the Good Food Institute (GFI).
If an almond-based liquid presented itself in a white carton as ‘milk,' that would be misleading, acknowledged the GFI. But no almondmilk brand has any interest in pretending to be dairy milk, and plant-based brands typically use a modifier (eg. almondmilk) and additional qualifiers (eg. dairy-free, plant-based, non-dairy) on pack.
What happens now?
While the FDA has largely ignored dairy producers’ calls for a crackdown on the use of dairy-derived terms on plant-based products in recent years, FDA commissioner Dr Scott Gottlieb has indicated that “a new compliance policy” may be on the cards.
But he also acknowledged that there could be legal challenges were the agency to suddenly ban terms such as ‘almondmilk’ having tacitly endorsed such terms on food labels for a decade, and issued a public request for information (RFI) to help inform the development of draft guidance to “provide greater clarity on appropriate labeling of plant-based alternatives.”
Read all of the stakeholder comments on the FDA's request for information HERE (the deadline has now passed).
Read a selection of stakeholder comments below:
Daniel Fabricant, Ph.D., President and CEO, Natural Products Association: "Does this standard of identity issue actually rise to the level of a public health threat that FDA must address it now? I would think the Agency has more pressing matters at hand. If FDA has data to suggest it is an issue, then we are happy to discuss ways to fix it, but that evidence has not been brought to light."
National Milk Producers Federation: “NMPF welcomes competition from plant-based food manufacturers – our real dairy products are superior in taste, quality and nutrition. What we object to is plant-based food manufacturers misappropriating the nutrition halo and the dairy industry’s good name to market plant-based products… the misappropriation of dairy terminology on plant-based products is not permitted in other countries and those laws are enforced.”
Jackie McClaskey, Kansas secretary of agriculture: “Enforcing standard of identity regulations is not an act of picking winners or losers, but rather being consistent and truthful to consumers. KDA strongly supports our soybean industry... we know that the market for plant-based beverages is growing, but we also support consistent and fair regulatory standards.”
Plant Based Foods Association: “Plant-based foods that can be used directly in place of dairy-based products utilize the same over-arching terminology (e.g. milk, butter, cheese) because they serve the same purposes and are used in almost exactly the same way as their dairy counterparts. For example, a consumer who puts almond milk in their coffee instead of dairy milk is making a conscious choice to use one type of milk instead of another.
“Alternative names for plant-based milks—such as ‘drinks’ or ‘beverages’—are not preferred by consumers. These terms are more frequently associated with products such as soft drinks and alcohol.
The Good Food Institute: “The word ‘milk’ does not convey only one nutritional profile. FDA mentions that the nutritional content of plant-based dairy can vary yet does not mention the variety in nutritional content of cow’s milk. For example, the nutritional content of lactose-free skim milk is different from the nutritional content of 2% reduced fat chocolate milk. In comparison to lactose-free skim milk, 2% reduced fat chocolate milk has more fat, more than double the amount of sugar, and nearly four times the amount of cholesterol.
“If FDA has no issue with all cow’s milk being called ‘milk’ despite possessing a broad range of nutritional attributes, then FDA should not have an issue with the differing nutritional attributes of various plant-based milks.”
The American Beverage Association: “Imposing a strict interpretation of standards of identity and preventing use of the term “milk” on plant-based beverages would represent a complete reversal of FDA’s innovation-friendly approach of the last several decades and a return to restrictive policies that seek to restrict innovation and competition. Calls to impose such a strict regime are not based on any evidence that such a regime is required to protect consumers, but instead reflect the long history of the dairy industry’s attempts to use federal regulation to protect itself from competition.”
