The just-approved $1.3-trillion omnibus spending package that funds the federal government through Sept. 30 includes language from a bill directing the Food and Drug Administration to develop standards of identity for dairy products, according to Food Navigator.
Milk producers are calling this a victory helping to clamp down on "misbranded imitations," according to a statement from the National Milk Producers Federation. Plant-based beverage backers told Food Navigator that the bill language came out of a non-binding report from last year and carries "zero legal significance."
FDA has 180 days from March 23 — the day the spending bill became law — to prepare the new standards and issue industry guidance about how they will be enforced.
The dairy industry has fought this battle for a few years as its products slump in the marketplace and plant-based alternatives made from nuts and grains continue to win favor with consumers. Non-dairy milk sales in the U.S. have increased 61% during the past five years and were estimated to reach $2.11 billion in 2017, according to Mintel. Meanwhile, overall sales in the dairy milk category have dropped 15% since 2012, hitting an estimated $16.12 billion in 2017.
The basic argument from the dairy industry is that plant-based beverages aren't appropriately labeled and producers should not be able to use the word "milk" on their labels if the products don't contain any dairy animal components. The industry also makes the same argument about plant-based products calling themselves "cheese" and "yogurt."
"Real milk is well-known for its strong nutritional contributions, which is why the fake food marketers want so badly to continue using dairy terms on dozens of different plant powder formulations," Jim Mulhern, NMPF president and CEO, said in a release. "But these products are pale replicas, not an acceptable substitute for real milk from a nutritional standpoint. This measure will help end the confusion that just co-opting a word somehow makes a food nutritionally equivalent."
FDA has already established standards of identity for milk, cheese and yogurt products, but the National Milk Producers Federation says they aren't being enforced. Michele Simon, executive director of the Plant Based Foods Association, told Food Navigator that the dairy group was "engaging in deceptive media tactics," and the bill's language has "zero legal significance."
Standards of identity for other food products are important but have not always made a difference when competitors came on the scene. In 2015, Unilever and FDA questioned whether Hampton Creek — maker of vegan Just Mayo — could legally use the term "mayonnaise" or the image of an egg on jars of its eggless sandwich spread. Federal standards of identity for mayonnaise require the product to contain vegetable oil, a strictly defined acid, and an egg yolk-containing ingredient. While Hampton Creek, which now calls itself "Just," won the battle, the company had to make changes to its label wording and imagery to "ensure its products are labeled in a manner that is truthful and not misleading," according to a FDA statement.
PepsiCo's Sabra sought to set standards of identity for hummus in 2014 by asking FDA to determine that a combination of chickpeas and tahini is the only mixture that can legally be labeled "hummus." The petition has not produced a decision yet. In September 2014, FDA sent Sabra a letter saying other priorities had kept the agency from acting on the petition. No other official action has been taken. Today, products labeled as "hummus" but containing white or black beans, edamame and/or other beans and legumes — with and without tahini — continue to be sold nationwide.
While standards of identity are serious business in federal regulations, it's unclear when FDA will get to policymaking — let alone enforcement. Even if FDA restricts the word "milk" to products containing animal-derived liquids and strongly enforces the standard, it may not make any difference as a practical matter. Consumers are likely to continue to seek out and purchase their favorite plant-based beverages, recognizing them by brand name and packaging. Despite any official prohibition on what these beverages are called, consumers may continue to call them "milk," no matter what the label says.