In the age of plant-based alternative drinks labeled as “milk,” the Food & Drug Administration has been asked to enforce its existing regulations on what can be labeled as milk by those in the milk industry. The FDA comment period on what has been termed "fake milk" by those in the dairy industry closed on Jan. 28, but stakeholders in the plant-based industry will not go down without a fight.

Last September, FDA began soliciting input in the Federal Register from the public to gain more insight into how consumers use plant-based alternatives and how they understand terms like “milk” or “cheese.” At the time, FDA said it had concerns that some plant-based product labels may lead consumers to believe that those products have the same key nutritional attributes as dairy products, even though these products can vary widely in their nutritional content.

The National Milk Producers Federation (NMPF) – one of the leading advocates for the need to ensure that milk is derived only from a cow – continues to insist that FDA needs to require clear, accurate labeling in the marketplace. NMPF presented a docket full of what it views as evidence of “rampant marketplace confusion regarding the relevant nutritional merits of milk versus its imitators.”

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NMPF said consumers are being misled about the nutritional content of plant-based dairy imitators, creating marketplace confusion and inappropriately blurring well-defined standards of identity.

In its filing, NMPF said nearly two-thirds of people recently surveyed (65%) thought plant-based beverages were nutritious, but only 32% said milk was nutritious. Large majorities of respondents in all buyer categories viewed almond beverages as having as much protein as or more protein than milk (77%), at least as many vitamins and minerals (78%) and at least as many “key nutrients" like calcium and potassium (68%).

The Good Food Institute (GFI) commented that, for decades, FDA has allowed plant-based dairy producers to use a qualifier paired with a standardized term on their product labels, and FDA should continue to permit producers to do so.

“Consumers have long understood that various compound terms such as ‘soy milk’ refer to distinct products that are not made from the lacteal secretions of mammals but, rather, from plants like soybeans. Terms such as ‘soy cheese’ and ‘almond milk’ have become well established through continued and wide-ranging use by consumers, producers and the government, including FDA,” GFI said.

NMPF said consumers need information about the nutritional differences of plant-based beverages. In its comments, NMPF noted, “Long ago, FDA took issue with nutritional fortification of nutritionally inadequate foods that held out to be healthy nutritionally sound foods. FDA took action and issued what has been colloquially known as the ‘jelly bean rule.’ In essence, one cannot take a jelly bean and inject it with nutrients and then advertise that it was a 'good source of …'. The plant-based manufacturers are, in essence, doing precisely this. They start with water, add a concoction of powders and chemicals and then call it a “milk” – one of the most wholesome and nutritious food products known, a product that contains nine essential nutrients and is an especially important source of nutrients in a child’s diet. Currently, plant-based food manufacturers are making implied nutrient content and health claims with no fear of retribution, a situation FDA must remedy.”

Yet, GFI argued that there simply is no single nutritional profile for cow’s milk. In a blog post, Matt Ball, senior media relations specialist with GFI, noted, “It is absurd to try to limit the word ‘milk’ to products with a certain nutritional profile. What about a milk that has as much protein and calcium as cow’s milk but also has healthy omega-3s? Should only that product be called milk?”

GFI also argues that plant-based milk companies have a First Amendment right to communicate clearly with consumers, which they claim has been recognized by the courts, most recently by the ninth circuit in Painter vs Blue Diamond in which it was found that almond milk was not "imitation milk" and that reasonable consumers are not deceived.

GFI also argued that FDA would violate the First Amendment if it were to restrict the use of common or usual names – such as soy milk – and appropriately descriptive terms on plant-based dairy products.

Still, NMPF is hoping that it can get FDA on its side in upholding First Amendment protections. NMPF said it will file a citizen petition with FDA in the coming weeks “calling for prompt enforcement actions against misbranded plant-based dairy imitators as well as for the FDA to amend its regulations to codify its long-standing and well-tailored food labeling policies. These policies permit imitation and substitute foods to use standardized dairy names only under limited, defined conditions that directly advance the government’s substantial consumer protection and public health protection interests in a well-tailored manner,” NMPF said in its comments. “The citizen petition will also extensively address any alleged First Amendment issues and establish a clear path forward for the agency.”