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Dairy Alternative Labeling Debate Continues

As we previously reported, the National Milk Producers Federation (NMPF) filed a citizen petition with FDA in February 2019 requesting that the agency (1) enforce existing “imitation” labeling requirements against non-dairy substitutes for dairy foods and (2) codify FDA policies to permit the name of a standardized dairy food (like “milk,” “yogurt,” or “cheese”) to be used under limited circumstances. In particular, the petition proposes amending 21 C.F.R. § 101.3(e), FDA’s imitation foods regulation, to require the word “imitation” in product identity statements for non-dairy substitutes unless the product is nutritionally equivalent to the referenced dairy product.

On March 19, 2021, the Good Food Institute submitted a comment arguing against the petition, saying that the NMPF’s proposed regulation contravenes the Federal Food, Drug and Cosmetic Act, interpretative case law, and current regulations on “imitation” foods and violates the free speech clause of the First Amendment. Specifically, the comment characterizes the proposal as “needlessly complex and protectionist” and emphasizes its view that plant-based products are not “imitation” products that claim nutritional equivalence under current regulations but are instead alternative or substitute products, using the example that cow’s milk is to soy milk as is canola oil to soybean oil.

In addition to a handful of consumer comments, the Plant Based Foods Association had filed a comment also advocating against the amendments proposed by NMPF. Other industry stakeholders had filed comments, which we summarized here, regarding nomenclature concerns with plant-based dairy alternatives in response to an FDA Request for Comments in early 2019.

FDA has not yet responded to the comments it received on its 2019 request or NMPF’s citizen petition. We will continue to monitor this issue and report on any developments.

© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 85
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About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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