In the petition– filed as the FDA wades through thousands of public comments on milk/cheese/butter/yogurt labeling – the NMPF proposes that plant-based brands that do not match dairy counterparts nutritionally should use the term ‘imitation’ (eg. ‘imitation milk’); while those that do match dairy nutritionally should use terms such as ‘substitute’ or ‘alternative’ (eg. ‘yogurt alternative’).
It also challenged “specious arguments” that a crackdown on plant ‘milk’ labeling could mean the end of ‘peanut butter’ or other products that “clearly aren’t marketed as dairy substitutes” adding that the requirement for nutritional equivalence “applies only when a food resembles another food, in addition to substituting for it.”
1 - 'Hempmilk: imitation milk'
2 - 'Hempmilk fortified with [nutrients added to achieve nutritional equivalence to milk]: ‘milk alternative’ or ‘milk substitute’
3 - 'Hemp beverage'
Nutritional equivalence
While some stakeholders (and courts) have challenged the nutritional equivalence argument on the grounds that no reasonable consumer would expect a nutmilk, say, to precisely match dairy milk nutritionally, the NMPF noted that dairy milk is a key source of nutrients for many Americans, and said replacing it will have negative public health consequences:
“The fortification of standardized dairy foods with vitamin D [a nutrient which is added to some plant milks, but not all] has virtually eliminated the nutritional deficiency disease known as rickets.”
It also pointed out that the standard of identity for margarine – which is used as a butter substitute – prescribes fortification with vitamin A, “further emphasizing that the agency has used standards to protect… public health by requiring fortification of substitutes… when the food substituted for has historically provided important nutrient contributions to the diet.”
NMPF: FDA’s decades long inaction has allowed marketplace chaos to grow exponentially
In a conference call with journalists held on Thursday, NMPF EVP Tom Balmer claimed that “FDA’s decades long inaction [on enforcing standards of identity that limit the term ‘milk’ to the lacteal secretions of cows] has allowed marketplace chaos to grow exponentially.”
Asked by FoodNavigator-USA why the NMPF was devoting so much time and energy to the issue, given that dairy alternatives are still performing well in markets where labeling is more restrictive, he said: "For us it comes down to the law.
"It's a case of obeying existing labeling regulations that apply to us, and we think it's only fair for other products looking to cash in on the halo of our products to obey the laws that are in place.
"Shame on FDA for avoiding taking action on their own labeling laws over the past 20 years."
Asked if goat's milk should be labeled as a 'milk alternative' given that the standard of identity refers exclusively to the lacteal secretions of cows, he said: "No, we believe that any milk from other lactating species such as goats and sheep [counts as 'milk'], and we intend to clarify that by including a provision for the specific naming of the species associated with the product."
According to the NMPF: On average, dairy foods (milk, cheese, and yogurt) provide 54% of calcium, 56% vitamin D, 29% vitamin A, 27% vitamin B12, 28% phosphorus, 24% of riboflavin, 18% of protein, 17% zinc, and 14% of potassium; these foods also contribute 226 calories, 27% of saturated fat, and 15% of total fat per day in the diet of Americans aged two and over (see attachment H of the petition).
“For ~11% of all calories, dairy foods provide 56% of all vitamin D in the diet.”
“FDA regulations… would be nonsensical and rendered meaningless if manufacturers could simply create new substitute products as they please, and misappropriate the name of the respective reference standardized food in the statement of identity for the substitute in any manner that suits them.”
NMPF petition, February 21, 2019
Plant Based Foods Association: Requiring such a disparaging word as ‘imitation’ on labels would violate the First Amendment
Michele Simon, executive director at the Plant Based Foods Association – which proposed voluntary standards for plant-based milk labeling last year – said the NMPF was trying to solve a ‘problem’ that did not exist. Consumers are not confused, and they are not being misled, she said.
"The latest volley from the National Milk Producers Federation does not change PBFA’s fundamental position: that this is a solution in search of a problem. Requiring such a disparaging word as ‘imitation’ on labels would indeed violate the First Amendment because there is no compelling government interest here.
“Plant-based alternatives to cow’s milk and other dairy products are not ‘nutritionally inferior,’ they are simply different. Courts have also agreed with this position.”
She added: “We look forward to working with FDA to reach a more constructive solution that fosters a free market for the many consumers who are increasingly seeking out plant-based options."
Read the NMPF petition in full HERE.
“Our members and others in this category, are using common English words that consumers understand: milk, cheese, yogurt and butter. To our members, and to consumers, these words represent functionality, form and taste, not necessarily the origin of the primary ingredient. They also are using qualifiers such as ‘non-dairy,’ ‘dairy-free,’ ‘plant-based,’ and / or ‘vegan’ to make the labels clear.
“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 than the stuff you put in your coffee, cereal, or smoothie.”
Plant Based Foods Association, public comments to the FDA January, 2019
AHPA: What about milkweed, butternut squash, milk thistle?
In public comments to the FDA, the American Herbal Products Association (ANPA) noted that dairy names are used in the common or usual names of some plants used as dietary supplements and dietary ingredients (milk thistle, milkweed, butternut squash, coconut butter, butter lettuce).
If the FDA is going to crack down on dairy terms in plant-based products, it should “ensure that any rule or guidance that results from the September 28 Notice makes completely clear that the Agency’s approach to the labeling of plant-based products applies only to any plant-based product and ingredient therein that is used as a substitute for or marketed to resemble a dairy product.”
SURVEY: Consumers know plant milks vary by product and brand
Almost half (48%) of Americans have purchased both dairy- and plant-based milks over the past six months, according to an IPSOS survey of 2,006 adults commissioned by Dairy Management Inc.
When looking at personal consumption, however, there was a stronger share of dairy-milk-only consumers (62%) and plant-based-only consumers (12%), with around a quarter (26%) drinking both types of milk.
Most consumers were aware that there are more ingredients in plant-based milk than dairy milk, and that plant milks vary in formulation and nutrition by product and brand.
While plant-based-only milk buyers were more likely to believe plant milks had more nutrients than dairy milk, fewer than a quarter (23%) of total respondents believed this.
As for protein, however, 62% of plant-based-only buyers, 51% of dual buyers, and 35% of total respondents, thought plant-based milks offered higher or equal protein quality to dairy, a result that surprised some dietitians we spoke to. Read more HERE.