The National Milk Producers Federation petitioned the Food and Drug and Administration to take enforcement action against non-dairy products using terms such as milk, yogurt, cheese, ice cream and butter that "are nutritionally inferior to such reference standardized dairy foods."
The NMPF said existing FDA rules require that products use the word “imitation” if they reference a standardized dairy food but don't have the same nutritional value. The petition also said FDA rules allow for the terms "substitute" or "alternative" on products deemed nutritionally equivalent to the dairy products they reference.
Tom Balmer, NMPF executive vice president, said there's "a compelling need" to resolve this labeling issue. "Marketers of plant-based foods that are designed to resemble standardized dairy foods actually have several labeling options under current FDA regulations, as we point out in this petition," he said in a release. "The unfortunate reality today is that many of them are playing fast and loose with the labeling rules to mask their nutritional inferiority to real dairy products."
The NMPF petition was filed Feb. 21 as the FDA is sifting through more than 13,000 public comments on how to regulate the labeling of plant-based dairy alternatives. The group emphasized it's not advocating a ban on how dairy alternatives label themselves. Balmer said he only wants "proper disclosures that allow for appropriate, truthful, non-misleading messaging."
If the petition is successful, it could mean plant-based alternatives would have to convince the FDA they're nutritionally equal to their dairy-based counterparts and, depending on the result, potentially change their labeling. Products such as almond or oat milk, or yogurt made with soy or coconut, might need to be labeled as "substitute yogurt," "milk alternative" and/or "imitation milk."
The Plant Based Foods Association took a dim view of the NMPF petition. Executive Director Michele Simon called it "a solution in search of a problem." Highlighting points the group made in a comment letter to the FDA, the Plant Based Foods Association said restricting "milk" labeling would be a First Amendment violation and would ultimately be found unconsitutional. In addition, she said plant-based foods are no longer a niche market and the growing industry "would be stifled should the FDA unfairly target plant-based foods."
"We encourage the FDA to abide by free market principles and not restrict labeling to unfairly favor the dairy industry," she said.
The NMPF and the dairy industry as a whole are understandably threatened by the increasing popularity of dairy-free products. Non-dairy milk sales rose 9% to $1.6 billion in the 52 weeks that ended in June, according to Nielsen and the Plant Based Foods Association, while cow's milk sales dropped 6%. During that same period, sales of non-dairy creamers jumped 131%, yogurt sales grew by 55% and plant-based cheeses were up 43%.
Besides declining sales and falling prices, traditional dairy is facing numerous other challenges, including an oversupply of milk, export tariffs and more dairy farms going out of business each year. Synthetic milk protein also is a looming competitor. On the plus side, sales of whole and flavored milk products are doing relatively well, and recently proposed legislation could bring whole milk back to school lunches.
It remains to be seen whether this petition will convince the FDA to clamp down on non-dairy products using dairy terms. That will likely depend on a review of the 13,000-plus public comments and how critical FDA Commissioner Scott Gottlieb and his colleagues are on the issue.
It's also possible the NMPF filed this petition in order to stake out a position on which it's prepared to negotiate down the line. Due to the significant interest and income tied up with this product labeling debate, a compromise may have to be worked out between all parties in order to move forward.
Meanwhile, consumers don't seem confused about dairy or non-dairy labeling terms. According to an online survey of 1,000 adults this past summer from the International Food Information Council, about 75% of consumers know plant-based milk doesn't contain cow's milk, and most are aware products labeled as "whole milk," "chocolate milk," "nonfat milk" and "skim milk" do. However, another survey of 2,010 adults from Dairy Management, Inc., found more than half believed plant-based beverages are labeled "milk" because they're nutritionally equivalent to the real thing.