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(Don’t) Got Milk? FDA Cracking Down on Plant-Based Beverages

At a recent Politico event, Federal Drug Administration (FDA) Commissioner Scott Gottlieb signaled the agency’s shift to a new era of more stringent enforcement in the dairy business. Gottlieb did so with an amusing quote: “An almond doesn’t lactate, I will confess.”

Gottlieb’s curious combination of words was referring to the federal regulation that defines what may be legally marketed as “milk.” Section 131.110 of the Code of Federal Regulations states that “milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” Gottlieb’s comment reflected that since almonds do not lactate, the beverage currently known by consumers as “almond milk” does not strictly fall under the definition of milk.

But almond milk is not alone.  Popular nondairy alternative milks are produced from soy, rice, oats, flax, cashews, peanuts, and more.  A shift by the FDA in its regulation of these beverages could result in plant-based milk manufacturers having to completely change their products’ marketing and branding focus, a process that often takes several months (or longer).

The FDA cannot implement these changes immediately, but instead must provide guidance to the industry and solicit public feedback.  Much of that feedback will likely come from the dairy lobby, which publicly lauded Gottleib’s comments. “We are pleased to see that the U.S. Food and Drug Administration has finally recognized the need to increase its scrutiny of plant-based products imitating standardized dairy foods. The statement released earlier today by FDA Commissioner Scott Gottlieb echoes our long-standing public health concerns regarding nutritional deficiencies in plant-based foods bearing the term ‘milk,’” said National Milk Producers Federation President and CEO Jim Mulhern.

Gottlieb noted that the changes would take time, estimating that it would take “something close to a year.”

© 2020 Bilzin Sumberg Baena Price & Axelrod LLP

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About this Author

Lori Lustrin, Commercial Litigation Attorney, Bilzin Sumberg Law Firm
Partner

Lori is a general commercial litigator who focuses on complex class-action and plaintiff opt-out antitrust litigation in federal court. In addition to antitrust work, her class action experience includes defending clients in the consumer products, homebuilding, real estate investment, and food and beverage industries.

Lori has also taken an interest in the emerging area of healthcare antitrust litigation and she has authored several articles on the subject. In addition to her varied federal court work, Lori has substantial experience in complex business litigation...

305-350-2385
Melissa Pallet-Vasquez, Litigation Attorney, Bilzen Sumberg Law Firm
Partner

Melissa Pallett-Vasquez is a Partner in Bilzin Sumberg's Litigation Group. She handles complex commercial litigation matters, class actions and arbitrations, often on behalf of clients from Canada. Melissa represents clients in a number of areas including real estate-related contracts, partnership and joint venture agreements, defense of intentional tort claims, internal investigations and intellectual property litigation. Melissa has substantial courtroom experience, including numerous federal and state trials, as well as international and domestic arbitrations, and in certain cases, appeal.

Melissa's significant ties in Canada and her fluency in French are particularly helpful in assisting her international clients with their legal needs in the South Florida business community. Melissa is consistently recognized for her expertise, having been named a "40 Under 40" honoree by both the Daily Business Review and the South Florida Business Journal. Since 2010, she has been recognized by Florida Super Lawyers as a "Florida Rising Star."

305-350-2393
Jerry Goldsmith Bilzin Sumberg Law Firm Florida Litigation Lawyer
Associate

Prior experience at a wealth management firm taught Jerry the importance of placing himself in his clients' shoes. Armed with unique, first-hand knowledge of what keeps a client up at night, Jerry understands the needs of his clients and how to help them find solutions.
Jerry represents clients in complex commercial litigation matters, including mortgage repurchases and partnership disputes. Jerry has experience litigating in both state and federal court.

305-350-7275