At first glance, the question seems simple enough. Can milk-like beverages, ones that look like milk and taste like milk, but are derived from plants rather than from teats, be sold as a type of milk, soymilk in particular? This is not a harmless little spat. Plant-based beverages, led by increasingly popular soy milk, have grown into a $7 billion industry; and it’s expected to double in size by 2022.
Big Milk Punches Back
While the faux-milk industry has grown rapidly, real-milk producers are facing declining sales. So, they’ve decided to fight back. Jim Mulhern, president and chief executive officer of the National Milk Producers Federation has drawn a line in the sand. Even if food technologists can make plant-based beverages look like milk and taste like milk, they’re not milk. Real milk can only come from mammals.
A plant-based, milk-like beverage is not the nutritional equivalent of real milk and can’t be marketed as such. It calls the plant-based beverage industry’s name grab a “transparent attempt to profit from milk’s good name by emulating the wording, but not the superior nutrition, of our products.” Owning the term milk for marketing purposes is a huge deal.
What’s in a Name?
Milk has a reputation that’s pretty much beyond reproach. But the question of who can use it in describing a product, and how, is very much the subject of debate. There’s a tendency to side with the purists who define real milk as one thing and one thing only. But if milk is modified by always using a word to qualify it, like soy, or almond, rice or coconut for that matter, mean that it’s not real milk?
It can be a tough slog wading through the myriad of seemingly simple ways words matter, and this dispute is a case in point. It pits the U.S. Department of Agriculture against the Food and Drug Administration with rival trade groups lining up with the federal agency that is most supportive of their respective points-of- view, and taking or threatening legal action against the one that isn’t
Plant-based milk groups are renewing their demands that the Food & Drug Administration rule on a 20-year- old petition asking FDA to clarify its stance on plant-based milk naming. The Soyfoods Association of North America originally petitioned the agency 1997. The FDA has never issued a ruling.
Now, the Good Food Institute (GFI) which is opposed to what it describes as industrial animal agriculture, is demanding the FDA make that ruling and that the ruling specifically allow the term “soy milk” to be used in the marketing of soy-based beverages. It argues the term soymilk has been so widely used, for so long, it’s become a part of the food vernacular.
It further argues the FDA has been letting food producers use common names like soy milk to describe plant-based milk for years. [The FDA has not stopped the Silk brand of soy milk, for instance, from using the term prominently in the packaging and marketing of its products.] It says it just wants the agency to make it official.
The FDA has so far refused to grant the petition. It continues to insist the federal definition of milk is that of a “lacteal secretion” from cows. The agency is adamant that referring to plant-based drinks as “milk” would be incorrect. The fact that it hasn’t enforced the rule does not mean the rule is incorrect.
USDA Complicates Matters Further
To make things even messier, the USDA is using the term itself in dietary guidelines it publishes for American consumers despite the FDA’s insistence that it refrain from doing so, As part of its investigation into the FDA’s reluctance to rule on the 20-year- old petition, the GFI discovered emails, in which a nutritionist working the FDA’s parent agency, the Department of Health and Human services, had corresponded with FDA officials to inform them of the USDA’s impending release of dietary guidelines to the public containing the term the term soymilk.
In response, the FDA re-affirmed its decision to define milk as “lacteal secretion from a mammal,” plant-based milk like beverages can’t be described as milk in any way shape or form. It suggested the USDA be told to using the term “beverage” or “fortified beverage” instead. The FDA also warned that continuing to use the term “soymilk,” could undermine the USDA’s authority. The nutritionist, probably feeling a bit like a ping pong ball at this point passed, the information to
USDA but was then told by the USDA that the agency was adamant about using the term in consumer publications.
Re-enter the National Milk Producers Federation
The NMPF is currently working on legislation that would require the FDA to enforce the federal standards for what can be considered true milk. This would make using the term milk in combination with soy, or any of the other plants from which a milk-like beverage can be derived, a crime.
The ball is back in the hands of the FDA at the moment, and it seems like a no-win situation. If the FDA sticks to its guns on the definition of milk, it runs afoul of its sister agency and risks a law suit from the GFI. If it does a flip flop and re-defines milk in a way that plant-based products qualify for the designation, it ends up with egg on its face and the dairy group will expedite its efforts to pass legislation that would take the issue out of the department’s hands.
Inter-agency Wrangling Continues
The debate over the term soymilk has already been settled in the European Union. The courts there ruled in June that almond, rice, and soy beverages cannot be called “milk.” The NMPF is confident U.S. courts would rule the same way.
Meanwhile, the FDA and the USDA continue to wrangle over the one best way to officially describe plant-based beverages. Finding a solution that both agencies can live with may prove to be elusive.
It’s “not a trivial decision,” the FDA warned in one of the 2011 emails about the USDA’s desire to use the term. At this point, no resolution is in sight.
It came as no surprise, then, when asked more recently what steps it intended to take to resolve the dispute, the FDA said it had no comment.