FDA draft suggests plant-based milk may be called 'milk': What dairy farmers, legal experts have to say

The battle between dairy milk and plant-based milk producers is ongoing as both industries disagree on the usage of the word "milk."

A recent draft guidance issued by the U.S. Food and Drug Administration (FDA) has brought this argument to the forefront with a proposal that says plant-based milk manufacturers should be able to call their beverages "milk" even though the liquids are made without animal-derived milk.

Dairy farmers have long defended their right to use the word in accordance with the FDA’s Federal Food, Drug, and Cosmetic Act (FD&C Act) established standard of identity, which defines "milk" as "the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows."

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On Wednesday, Feb. 22, the government agency reasoned that plant-based milk companies should be able to use the word "milk" on labels and packaging because most American consumers know that plant-based milk isn’t made with cow milk or any other animal-produced milk.

The FDA’s draft guidance went on to explain that the public already refers to plant-based milk as milk while also acknowledging the plant source it comes from, such as "almond milk" and "soy milk."

Consumers reportedly favor the term "milk" over plant-based "drink," "beverage" or "juice," according to internal and third-party focus groups the FDA cited.

Dairy farmers and producers say no to 'milk' in plant-based beverage product labeling

The National Milk Producers Federation (NMPF) in Arlington, Virginia, doesn’t seem to agree with the FDA’s stance on allowing plant-based milk to use the word "milk" on product packaging.

"The decision to permit such beverages to continue inappropriately using dairy terminology violates FDA's own standards of identity, which clearly define dairy terms as animal-based products," Jim Mulhern, president and CEO of the NMPF, said in a statement.

"We reject the agency’s circular logic that FDA’s past labeling enforcement inaction now justifies labeling such beverages ‘milk’ by designating a common and usual name," Mulhern continued. "Past inaction is poor precedent to justify present and future inaction."

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Mulhern noted that the NMPF recognizes the voluntary nutrient statement guidance outlined in the FDA’s proposal to be "a step toward labeling integrity" because it would show the nutritional differences between animal-derived milk and plant-based milk, but the dairy milk industry believes dairy terms should be reserved for dairy producers.

"Because [the] FDA’s proposed guidance is meaningless without action, enforcement will be necessary to ensure that this limited progress is reflected on grocery shelves," Mulhern said.

Can plant-based milk be called milk? Legal experts chime in

Laurie Beyranevand, the director of the Center for Agriculture and Food Systems at Vermont Law School in Royalton, Vermont, told FOX Business that the debate over the term "milk" has provided the FDA an opportunity to revisit its standards of identity.

"Not all foods have standards of identity, but some common ones like milk do," Beyranevand said. "The FDA developed these under its legal authority to prevent false and misleading labeling to ensure consumers aren’t misled about the products they're buying and to prevent food producers from economically adulterating products by substituting less expensive ingredients."

The FDA established a standard of identity for milk in 1973.

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"Research has shown consumers can tell the difference between plant-based, non-dairy milk and milk from animals," Beyranevand said. "This is an important signal for the FDA to revisit the standards of identity to be more inclusive of alternatives that consumers clearly want to purchase."

Katherine Ann Rubino, chair of the Life Sciences Practice Group at Caldwell Intellectual Property Law in Boston, told FOX Business that plant-based milk producers being allowed to call non-dairy milk a form of milk could raise intellectual property concerns regarding trademark laws.

"The legal standard here is whether consumers would be confused or deceived in the marketplace by purchasing plant-based products labeled as ‘milk’ that do not in fact contain dairy [and whether that would] impact their purchasing decision," Rubino said.

Rubino explained that trademark law is focused on upholding consumer rights and shielding them from deceptive marketing strategies with food naming, but litigation on whether the term "milk" can be used on plant-based milk products has yet to be fully figured out.

"A court would most likely find that terms such as ‘almond milk’ or ‘soy milk’ are generic terms, meaning that because of its popularity in the marketplace, it has become synonymous with a general class of products and as such consumers are not likely to be confused," Rubino continued. "Plant-based milk has been around for many years now and has seemingly gained notoriety in recent years."

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Milk or not: What do branding and marketing experts have to say?

Matt Yanofsky, the founder of The Moment Lab, a boutique marketing firm that specializes in consumers brands and operates from Los Angeles, Montreal and Toronto, told FOX Business that the plant-based milk industry benefits from being able to use the word "milk" in product packaging and labeling.

"By calling it ‘milk,’ it allows consumers to transition to something they’re familiar with and gives a sense of normalcy," Yanofsky said.

"This is marketing at its finest as the almond milk, soy milk, coconut milk [and other plant-based] brands are able to attach themselves to the legacy milk has created for itself across America," he continued.

Amanda Guerassio, a branding specialist who offers consulting and product naming services through her firm, Studio Guerassio in Austin, Texas, told FOX Business that the word "milk" should be open to plant-based milk brands.

"I think for this issue, if the plant-based product is meant to be a substitute or alternative to dairy or cow's milk, then, yes, it should be able to call itself milk," Guerassio said. "I think that actually provides clear signals to consumers rather than trying to come up with another word besides ‘milk.’"

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She agreed with the FDA’s proposed guidance that plant-based brands that choose to use the word "milk" on packaging should include language that makes it clear that the product is "plant-based," "non-dairy" and/or "dairy-free."

The plant-based industry believes otherwise

Jennifer Stojkovic, the founder and CEO of Vegan Women Summit, a New York City-based media and event organization that shares industry insights, told FOX Business that plant-based milk sales have increased in the U.S. and around the world.

"The dairy industry’s legal battle over plant-based milk and dairy naming has been drawn out in numerous countries across the world as a last-ditch effort to fight rising plant-based consumption," Stojkovic said.

She said "numerous studies" have shown that consumers aren’t confused when they see plant-based milk products with labels that mention milk, as noted in a peer-reviewed empirical study co-authored by the University of Louisville and Louis D. Brandeis School of Law in 2020.

"In fact, most of these [dairy] terms have been used in the culinary world for hundreds of years – just think of ‘coconut milk’ or ‘peanut butter,’" Stojkovic continued.

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Jaime Athos, the president and CEO at Tofurky, a plant-based turkey substitute producer in Hood River, Oregon, told FOX Business that many business leaders in the plant-based industry are pleased that the FDA’s draft guidance says plant-based milk can be called "milk."

"However, the draft requirement for additional [voluntary] nutrient disclosures on plant-based milk packaging is unfair to those companies and insulting to the intelligence of consumers," Athos said.

The FDA’s proposal recommends that plant-based milk manufacturers volunteer nutrient statements that describe how the product differs from animal-produced milk in terms of vitamins, minerals, fats and cholesterol, to name a few.

Comparative nutrient statements on plant-based milk packaging would help consumers make informed decisions about their dietary choices, according to the FDA.

"Consumers aren't confused about product origins when buying plant-based products," Athos said. "They are choosing plant-based as an expression of their preferences. They already know full well that plant-based milk is different [than] animal milk and that distinction is the very reason why they are choosing it."

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The Plant Based Foods Association (PBFA), a national trade association representing leading plant-based food companies, echoed similar sentiments in a press release issued on Wednesday, Feb. 22. Athos is a board member of the PBFA.

The PBFA commended the FDA for acknowledging that consumers are choosing plant-based milk as a dairy milk substitute, but the group disagrees with the FDA’s draft guidance on voluntary nutrient statements because it could become burdensome on plant-based milk manufacturers.