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Plant-Based Milk Labeling Comment Period Ends; Debate Continues

  • As previously reported in September on this blog, FDA requested comments on the use of dairy terms—such as milk, yogurt, and cheese—in the labeling of plant-based products. FDA’s Standards of Identity define milk in part as the “lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” The original deadline for comments was November 27. However, on October 21, 2018, FDA announced that the comment period would be extended by 60-days to January 28, 2019. (See 83 Fed. Reg. 58775.)

  • FDA received 13,077 comments on the use of dairy terms in the labeling of plant-based products by yesterday’s deadline. While most of the comments are from individual consumers, industry and nongovernment organizations also weighed in with diverse opinions. The dairy industry urged FDA to enforce the Standard of Identity for milk. Some are the comments expressing this view are summarized below.

    • The Ohio Dairy Producers Association’s comments, submitted on November 14, state that it “opposes allowing imitation dairy products, such as those made from soy, almond or other non-dairy ingredients, to bear the names of traditional or standardized dairy foods.”

    • The National Milk Producers Federation (NMPF) posted comments that it submitted on January 28 on its website. In a news release about the comments, NMPF stated, “The U.S. Food and Drug Administration must enforce its existing rules against mislabeling plant-based products with dairy terms to address widespread consumer confusion over the nutritional content of dairy-product imitators.” The NMPF commissioned a poll that found 49% of those questioned believe that non-diary brands should not be allowed to use the term “milk” on their product labels because they are often less nutritious than diary milk. Also, 61% of those polled said that they believe the FDA should restrict non-dairy beverage companies from using the term “milk,” while 23% believe that FDA should not restrict non-dairy beverage companies. The poll was conducted by Ipsos on January 4-7, 2019, and involved online interviews of 1,005.

    • James O’Reilly, professor of public health systems and director of the Concentration in Health Services Management at the College of Medicine of the University of Cincinnati, also submitted comments. Noting that he has taught food and drug law for 30 years and has no financial interest in a milk products company or alternative “milk” marketer, he stated, “Until and unless Congress changes the statute, FDA should enforce it. FDA should recognize that standards of identity have a long standing special position within the food safety and food marketing regulatory environment.”

  • Opposing opinions were expressed by organizations representing plant-based dairy producers and many of the individual commenters. Some of these comments are summarized below.

    • The Good Food Institute (GFI) stated in comments submitted on January 28, “FDA should not restrict plant-based dairy producers from using conventional dairy terms on their labels. However, if the agency were to depart from longstanding practice and create new rules that substantially affect how plant-based dairy producers conduct their business, it must promulgate a new regulation through notice-and comment rulemaking.” To support this view, GFI cited the fact that FDA has for several decades allowed products to be labeled using qualified standardized terms, such as “gluten-free bread” even through it doesn’t meet the standard of identity for bread. GFI also pointed out that 37% of all U.S. households purchase plant-based milk and that the plant-based milk category now stands at $1.8 billion annually. It concluded by stating, “Without a showing that consumers are actually confused by the labels of plant-based dairy products, and that there is no less restrictive means possible of ensuring clarity other than prohibiting plant-based dairy producers from using conventional dairy terms on their labels, FDA has no authority to act.”

    • The Vegetarian Resource Group (VRG), stated in its comments, “We believe that prohibiting plant-food labels from including words like milk, cheese, and yogurt in the name of these products would lead to consumer confusion. We urge you to permit the labeling of plant-based products with names that include milk, cheese, and yogurt.”
© 2020 Keller and Heckman LLPNational Law Review, Volume IX, Number 29

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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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