- Virginia Gov. Ralph Northam vetoed a bill that would restrict the "milk" label to products of cows or hoofed animals. It was the only bill he vetoed from the state's most recent legislative session.
- "Eliminating the ability to label certain food products with the term 'milk' could hinder some businesses’ ability to thrive in Virginia," Northam wrote in the veto explanation filed with the state's legislative system. "This bill likely conflicts with both the United States Constitution and the Constitution of Virginia and each’s protection of commercial speech."
- Supporters of plant-based products cheered Northam's veto. "Governor Northam has sided with Virginia consumers," Good Food Institute Senior Policy Specialist Scott Weathers said in a written statement. "Legislatures considering similar bills ought to follow Governor Northam’s leadership by rejecting these unconstitutional attempts to censor labels. Consumers should be the ones to pick the winners and losers in the marketplace — not special interests lobbying in state legislatures." In a statement from Plant Based Foods Association Executive Director Michele Simon, she said, "The decision to veto this misguided bill also upholds our members’ First Amendment rights to clearly and truthfully label their foods."
With Northam's veto, the renewed drive to try to change labels on plant-based dairy products hits another dead end — even though it passed Virginia's House of Delegates with a vote of 66 to 32, and the state Senate with a vote of 24 to 16.
Plant-based products have had dairy-like labeling — using terms like "milk," "cheese" and "yogurt" — for years. And though the dairy industry has never really liked that, lawsuits and legislative proposals in past years went nowhere.
A renewed movement to restrict these labeling terms to products from animals has been gaining steam. Former FDA Commissioner Scott Gottlieb may have sparked this renewed interest with his 2018 statement at an event sponsored by Politico that the agency would be putting out a guidance document for standards of identity in milk marketing. New guidance was never actually published; court decisions indicated consumers were unlikely to be decieived into thinking almond milk was actually dairy, and that the federal government's definition of milk centered around what it was, not what it was not.
In 2019, North Carolina and Maryland passed their own dairy labeling laws, while other states have considered similar bills. But none of these labeling laws have taken effect. Just like Virginia's bill, the North Carolina and Maryland laws will only take effect if similar legislation is also enacted 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.
Del. Barry Knight, a pig farmer who proposed the vetoed bill, had said he was interested in protecting Virginia's dairy industry. He had 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.
Several who supported the legislation told The Daily News-Record, a newspaper in Harrisonburg, Virginia, that the veto would harm the state's dairy farmers.
“We are certainly disappointed in the governor's decision,” said Stefanie Kitchen, assistant director of governmental relations for the Virginia Farm Bureau Federation, told the newspaper. “Signing the bill would have signaled a strong message of support to Virginia's struggling dairy farmers.”
While dairy farmers are struggling — especially now as lack of foodservice demand is leading to producers dumping millions of gallons of milk — it isn't clear how this kind of law would benefit them. Study after study shows consumers are not confused about whether there's dairy in plant-based milk. When FDA asked the public about the issue, it found more than three-quarters of respondents favored using traditional dairy terms on alternative products, while just 13.5% were opposed. 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. And another survey conducted last year by Dairy Management Inc. determined 44% of U.S. adults said they had purchased both dairy and plant-based milk in the previous year.
For its part, the plant-based industry has been working to reduce 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."
There is still a chance this bill could become state law. Virginia's General Assembly is set to reconvene on April 22 to consider amendments the governor made to other bills he signed into law, as well as new appropriations. A veto override could also be considered. In order for the vetoed bill to become law, it needs two-thirds of each house to vote for it — 67 in the House of Delegates and 27 in the Senate.
While the votes needed for a veto override are just a bit higher than the number of votes the bill received in both houses, it's likely legislators will be busy with other issues during the abbreviated session later this month. When the State House adjourned, it was before coronavirus transformed lives and businesses in Virginia. That may mean that the issue of milk labeling is once again put out to pasture — at least for the time being.