Oatmilk or oat drink? House Appropriations Committee ‘encourages FDA to provide clarity around the labeling of plant-based foods’
In a report accompanying a bill making appropriations for the USDA, FDA, Rural Development, and related agencies for fiscal year 2022, the committee said it would provide $5m to support research “focused on the characteristics of animal meat using plants, animal cell cultivation, or fermentation.”
It also noted that it was “aware of the ongoing debate around plant-based product labels and the use of traditional meat, dairy and egg terminology” and was “concerned by the assertions being made that labeling of these products are misleading, deceptive, and confusing to consumers.”
It added: “The Committee directs FDA to provide clarity around the labeling of plant-based foods that use traditional meat, dairy, and egg terminology.”
In an amendment, the language was changed from 'directs' to 'encourages': "The Committee encourages FDA to provide clarity around the labeling of plant-based foods that use traditional meat, dairy, and egg terminology, especially as it relates to such product labels with clear and conspicuous descriptors such plant-based, veggie, vegetarian, or vegan."
Plant-based seafood labeling: FDA should 'determine whether action is necessary to ensure consumers are not misled'
The report also noted that, “Certain foods are labeled as a fish or seafood product when the products are highly-processed plant-based foods rather than derived from actual fish or seafood. The Committee directs the FDA to continue to assess products on the market to determine whether action is necessary to ensure consumers are not misled regarding such product labeling.”
The FDA – which said earlier this week that it plans to issue draft guidance on the labeling of plant-based milks in the next 12 months – would not say whether it also plans to issue guidance on the labeling of cheese, yogurt, meat, seafood, or egg alternatives, and told FoodNavigator-USA that it “cannot provide additional information on specific guidance topics.”
PBFA: Welcomes opportunity to expose ‘unfounded attacks’ as ‘anti-competitive, protectionist affronts’
So what do stakeholders make of the report?
Trade association the Plant Based Foods Association (PBFA) – which has been battling a series of bills at the state level attempting to restrict the use of terms such as ‘meat’ and ‘milk’ to animal-derived products – said it would welcome some clarity from the FDA on this issue.
“To be clear,” said senior director of policy, Nicole Negowetti, “Consumers know the difference between a cashew and a cow, and they are purposefully choosing plant-based foods as an alternative to conventional animal products for a variety of reasons – environmental concerns, health, allergies, ethics, and taste.
“The animal meat, seafood, and dairy lobby is attempting to use government policy to stop the growth of the plant-based foods industry. PBFA welcomes support from Congress to explore and shed light on the unfounded attacks from the animal meat, seafood, and dairy lobbies to expose them for the anti-competitive, protectionist affronts that they are.”
The use of terms such as milk, sausage or burger merely help people understand how and when to consume foods, rather than having to “navigate a confusing new nomenclature that we’d all have to invent” (to quote PBFA member Tofurky) added the PBFA, which has issued guidance on the labeling of plant-based milks, yogurts and plant-based meat products, encouraging members to use clear qualifiers such as 'meatless,' ‘vegan,’ ‘plant-based’ or ‘dairy-free’ on packaging.
GFI: Standard of identity only applies to unqualified term 'milk,' not compound names like 'almondmilk' with qualifiers such as 'plant-based'
Jessica Almy, vice president of policy at the Good Food Institute, a nonprofit that promotes plant-based, cell-based, and fermentation-based meat and dairy alternatives, told us that it was "hopeful that the agency will affirm that compound names like 'almond milk' and 'oat milk' are permissible and that the standard of identity for milk applies only to the unqualified term 'milk,' without modifiers such as 'almond,' 'oat,' or 'plant-based.'"
As for seafood, she said, "Some plant-based product labels use terms like 'fish-free tuna' and 'crab-less cakes' to signal to consumers that these foods have a similar taste and sensory profile to tuna or crab but do not contain conventional seafood. That’s the entire value proposition of these products: they are plant-based. Consumers understand these labels, and commercial speech like this is protected under the First Amendment of the US Constitution."
We're confident FDA 'will continue to prioritize issues that actually matter to consumers'
In the past, when lobbyists have pressured FDA to censor these labels, she added, "the agency has responded by explaining that plant-based fish and seafood can use appropriately descriptive terms to communicate to consumers.
"FDA also emphasized that it considers product labeling on a case-by-case basis, and all the words on the label must be understood within the context of the entire label. Indeed, plant-based seafood labels make clear in multiple different ways that they are not from animals—the overall message expressed by a product label is never a matter of a single word.
"We are confident that FDA has no reason to take action against the plant-based seafood labels on the market, and that the agency will continue to prioritize issues that actually matter to consumers."
NMPF: 'Dairy farmers have long called for greater honesty in the marketplace through FDA enforcement of its own standards of identity'
The National Milk Producers Federation (NMPF), which has long argued that the FDA has been turning a “blind eye” to alleged violations of its own standards of identity (which define milk as the lacteal secretions of cows) – told FoodNavigator-USA that it welcomed the report and the upcoming FDA draft guidance.
Alan Bjerga, SVP communications, told FoodNavigator-USA that the key issue is one of nutritional equivalency, not confusion between cows and cashews.
He added: “Dairy farmers have long called for greater honesty in the marketplace through FDA enforcement of its own standards of identity in product labeling. FDA’s work on guidance is a hopeful sign that this issue may finally, after decades, be addressed in the consumer interest.
"FDA’s new yogurt rule strongly restates the agency’s support for robust standards of identity, a value that we share.”
Oatmilk or oat drink?
While terms such as 'soymilk' and 'oatmilk' are prohibited in the EU (where Oatly is an Oat Drink), they are widely used in the US (where Oatly is Oat Milk). And the FDA - say critics - has fluctuated unhelpfully on the issue of whether such terms mislead shoppers or violate federal standards of identity, which limit the term 'milk' to the "lacteal secretions" of cows.
For example, the FDA queried the term ‘soy milk’ in warning letters to a couple of manufacturers in 2008 and 2012, but thereafter maintained radio silence on the topic until then-FDA commissioner Dr Scott Gottlieb re-ignited the debate in mid-2018, telling delegates at the Politico Pro summit in Washington that, “We have a standard of identity for milk and I intend to enforce that… an almond doesn’t lactate.”
Gottlieb also noted, however, that there could be First Amendment issues to address, and that the FDA could face legal challenges by suddenly banning terms such as ‘almondmilk,’ having tacitly endorsed such terminology on food labels for years.
“The question becomes, have we been enforcing our own standard of identity? The answer is probably not… I’d need to at the very least issue a guidance document suggesting we’re going to enforce our existing standard of identity differently. That’s what we intend to do.”
It is not known what acting FDA commissioner Dr. Janet Woodcock's position on this issue is, but in a recently-published document outlining its budget, the FDA mentions the issue of plant-based labeling and stresses that: "Generally, FDA considers the terms used within the context of the entire label, including qualification of any statements or names with additional terms or information..."
Lacteal secretions...
A request for information issued in September 2018 to solicit feedback on the issue generated a dizzying number of comments (13,000 according to the FDA), with milk producers arguing that the word ‘milk,’ even with the term ‘almond’ before it, falsely implies nutritional equivalence to dairy, and The Good Food Institute and the Plant Based Foods Association arguing that there is no evidence that consumers are confused or that they assume oatmilk or almondmilk should precisely match the nutrition of dairy milk.
At the time, the GFI noted that, "The standard of identity for milk [defining it as the lacteal secretion of cows] does not apply to plant-based milks that use qualifiers on their labels. Indeed, the FDA has long recognized that the standard of identity for 'milk' applies only to the use of the unqualified term, and not to qualified uses."
Courts handling false advertising cases over plant ‘milks’ have tended to agree, arguing that the federal standard of identity for milk does not categorically preclude a company from giving food products names that include the word ‘milk.’
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, 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..."
