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FDA’s Proven It Can Do Its Job On Fake Milk – It Can Do It Again

May 23, 2022

With FDA guidance expected on the proper labeling of plant-based milk alternatives sometime this summer, it’s worth noting – even if seemingly for the millionth time – that this isn’t a tough call, no matter what plant-based lobbyists would tell you.

The FDA’s own standards define milk as an animal product. The agency charged with protecting the public health should, you know, protect the public health from well-documented consumer confusion over nutritional content. And if anyone tells you that it’s just too difficult for FDA to do that – that straw-grasping arguments about First Amendment speech protections and the proliferation of plant-based beverages are just too overwhelming for the agency to do its own job – remember this: FDA has already enforced labeling integrity. Multiple times.

For the record: Before it decided that plant-based beverages were just too numerous (or litigious, perhaps?) to do anything about, the U.S. Food and Drug Administration used to stand up to its own mission. On Jan. 23, 1981, FDA warned a soy-product manufacturer that “The statement ‘soybean milk’ has not been sanctioned as an acceptable identity statement for such a mixture as water, soybean, wheat and seaweed by this agency,” adding that there is not “a clear and uniform understanding of what ‘soybean milk’ is in this country.”

The 1980s were a feisty time for fighting food fakes. On Sept. 29, 1983, FDA wrote a research institute in Singapore to say “we have not recognized the term ‘soy milk’ as a common or usual name or appropriately descriptive term for statements of identity or ingredient designations of any food. As a result, we would object to any soy product entering this country that was labeled as ‘soy milk.’” A similar letter to South Korea in 1985 stated, “The names ‘soymilk’ and ‘vegetable milk’ are not acceptable identity statements for these products. The product may be called ‘soy drink’ or ‘soy beverage.’”

Chalk up dairy-label integrity as another reason to be nostalgic for Ronald Reagan. But before you dismiss seemingly ancient agency actions as part of a now-unrelatable era of high inflation, disputes over what’s taught in schools, and tensions with Russia (um, wait a second), note FDA’s letter of June 29, 2011. In that one, the agency told a sports-drink manufacturer that its “Muscle Milk” product line was misleading because its products “do not conform to the standard of identity for milk.”

Fake-milk enforcement isn’t merely a relic of Reagan’s FDA. It was part of President Barack Obama’s as well. But of course, consumers all know that “Muscle Milk” isn’t really made of muscles – right? According to FDA’s own actions, that’s not enough. Milk ain’t muscles, even though it builds them. It also ain’t almonds, or oats, or soy, or …

You get the picture. So why doesn’t FDA? Given the agency’s recent track record, it’s fair to say its years of inaction creates nervousness over what it might do next. Any attempt to justify previous non-enforcement by saying “but we haven’t been enforcing it” is flat-out wrong – the record shows it. And any argument that says “time has established a new usage while we’ve done nothing” isn’t just untrue, it insults the FDA officials who did stand up for integrity.

FDA could use some of that these days. Consumers could use some too. While we’re at it, the whole world could use a big dose of integrity (along with copious quantities of high-nutrition, true dairy products). And it’s not impossible. We’ve seen it before. Maybe someday — maybe soon – we can see it again.