UPDATE: March 5, 2020: The bill passed the Virginia Senate with a vote of 24 to 16 on Feb. 27 and awaits action from Gov. Ralph Northam. The Plant Based Foods Association is urging him to veto the bill, saying it "unfairly and unconstitutionally limits the ability of plant-based food companies to truthfully and accurately label their foods."
- A bill to define milk as the product of a cow or other hoofed mammals passed the Virginia House of Delegates with a vote of 66 to 32 last week.
- The bill stated that anything that does not meet its definition of milk — with the exception of human breast milk — would be misbranded. However, even if passed and signed into law, the bill would only take effect if it also is passed in 11 states in the Southern Dairy Compact, an industry group of 13 states working to preserve dairy farming and milk supply in the South. North Carolina passed a similar bill last year.
- The bill, proposed by pig farmer Del. Barry Knight, now goes to the Virginia Senate for consideration. A Senate version was introduced before the legislative session began by Sen. Bryce Reeves. No hearings have been scheduled.
The battle over "milk" is far from over, it seems.
Former U.S. Food and Drug Administration Commissioner Scott Gottlieb pulled the issue into the forefront in 2018 at an event sponsored by Politico when he said the agency would be putting out a guidance document outlining standards of identity for milk marketing. "An almond doesn't lactate, I will confess," the former commissioner famously said. But backlash over this declaration and a court decision saying consumers were unlikely to be deceived into thinking almond milk was actually dairy slowed the FDA. Courts also found that the federal government's definition of milk centered around what it was — not so much on what does not meet that definition.
The FDA decided to ask members of the public for their opinion. More than three-quarters of respondents favored using traditional dairy terms on alternative products, while just 13.5% were opposed. Studies have continued to show consumers aren't confused by this labeling. Research done by the International Food Information Council in 2018 found more than 75% of consumers know there is no dairy in plant-based milk. Another survey conducted last year by Dairy Management Inc. determined that 44% of U.S. adults said they had purchased both dairy and plant-based milk in the previous year.
Considering the wide understanding and use of both types of milk, why is there so much effort being put into changing state law? Knight told The Virginian-Pilot that he's worried about the dwindling number of dairy farms in Virginia. An average of 26 have closed annually during the last five years, the newspaper reported using state statistics.
“Some people maybe are capitalizing on the good name of milk, which most people associate with dairy milk,” Knight told then newspaper. “If you are a plant-based fluid, let’s get you a different definition.”
The plant-based industry has been working to take care of any labeling ambiguity. In 2018, the Plant Based Foods Association published a set of voluntary standards for labeling plant-based milks. The association said these guidelines are to promote consistency for consumers. The standards recommended that the base ingredient is part of a product's name — like almond milk — and clearly labeled as plant-based milk and either "non-dairy" or "dairy-free."
In a previous interview, Plant Based Foods Association Executive Director Michele Simon told Food Dive this type of legislation is 100% driven by the industry. There's no consumer momentum for this.
"Consumers are buying these alternatives specifically because they're not derived from an animal, so that's why companies are using clear qualifiers to make sure they stand out in the marketplace to reach the consumer who's looking for that type of option," she said.
But the issue has been polarizing in the dairy industry. Last year, Dean Foods gave up membership in the International Dairy Foods Association because it felt the trade group wasn't doing enough to fight the use of dairy terminology on alternative products.
It's been a rough several years for dairy. As consumers are becoming more interested in alternatives, industry stalwarts have been shriveling. After more than a year of calamitous earnings, Dean Foods filed for bankruptcy last year. And earlier in 2020, Borden also filed for bankruptcy. Both companies noted issues with rising debt and lower sales.
Still, the decrease in dairy sales can't be solely attributed to the popularity of alternatives. After all, the Dairy Management Inc. survey about what types of beverages consumers buy showed half only buy dairy milk. Consumption in the dairy space is at its peak — up to 646 pounds per person in 2018 from 539 pounds in 1975, according to U.S. Agriculture Department statistics. Coca-Cola recently bought all remaining shares in ultra-filtered milk brand Fairlife, which has seen sales growing by double digits each year — including a 42% increase in the first quarter of 2019.
At last week's annual forum of the International Dairy Foods Association, executives talked about how they need to be innovative — both with their products and how they let consumers know about dairy's benefits — in order to help their industry.
Even if this legislation passes Virginia's Senate and gets the signature of Gov. Ralph Northam, it may never be enforced even if it faces litigation from the plant-based sector. Similar bills need to be passed by 11 of the 13 states in the Southern Dairy Compact in order to be enforced — a sensible provision considering state-specific labeling provisions make marketing and enforcement difficult. Even though North Carolina has already passed the bill, there would still be nine more states that need to act.