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NMPF Opens New Phase of Fake-Milk Debate With “Road Map” Petition on FDA’s Next Steps

March 3, 2019

The National Milk Producers Federation opened the next phase of the battle against fake milk on Feb. 21, submitting a citizen petition to the U.S. Food and Drug Administration outlining a road map for the agency as it considers more than 14,000 comments on what to do about milk imposters that are attempting to flood the marketplace.

The petition argues that the use of standardized dairy terms such as “milk,” “yogurt,” “cheese,” “ice cream” and “butter” in the statements of identity for non-dairy plant-based substitutes “falsely implies that the non-dairy substitutes are equivalent to and interchangeable with standardized dairy foods.” They also fail “to disclose the material facts concerning how these non-dairy substitutes differ from standardized dairy foods or adequately distinguish non-dairy substitutes derived from different plant sources,” according to the petition.

“The FDA comment docket gave us the chance to explain why there is a compelling need to resolve this labeling issue to address consumer confusion over nutritional content,” said National Milk Producers Federation Executive Vice President Tom Balmer. “This petition lays out a constructive solution to the false and misleading labeling practices existing in the marketplace today, and provides clear, truthful and understandable labeling options for marketers of plant-based imitation dairy products.”

The NMPF petition notes that any manufacturer not wishing to use modifiers such as “imitation,” “substitute” or “alternative” may simply eschew the use of dairy terms altogether – an approach that’s already common in the rest of the world and practiced by some companies in the U.S. including Chobani, Trader Joe’s and Quaker.

NMPF also addresses First Amendment arguments that have been raised by opponents, via a thorough discussion of relevant case law on commercial speech rights. Beginning with the landmark Central Hudson Gas & Electric Corp. v. Public Service Commission and running through more recent decisions such as Zauderer and American Meat Institute vs. USDA, the petition explains how NMPF’s proposed solutions focus on disclosure requirements narrowly tailored to improving labeling transparency and promoting informed consumer choice – and are emphatically not a “ban” on the use of dairy terms by plant-based products.

“Our approach does not advocate for any so-called “bans,” Balmer said. “It simply relies on proper disclosures that allow for appropriate, truthful, non-misleading messaging. In the end, products that are ‘milk-like’ or ‘yogurt-like’ are not actual milk or yogurt – and the nutritional distinctions are critical to informed consumer decision-making. That’s what our petition is all about.”

FDA opens new docket

The NMPF petition was filed in the wake of the agency’s request for public comment on related issues that closed on January 28, 2019.  While many of those comments were strongly anti-dairy, they delivered very little substance, in contrast with pro-dairy comments from organizations including the American Academy of Pediatrics, which noted that:

Pediatricians report that using the term “milk” in the labeling of dairy-free alternatives has caused parental confusion, leading to the purchase of products that they assume contain traditional dairy ingredients and, thereby, unintentionally causing harmful nutritional deficiencies in their children.

The comments filed by the dairy industry and others on the other hand were substantive and clearly showed that consumers are confused about the nutritional inferiority of plant-based substitutes and that there is ongoing public health harm as a result.

In response to the NMPF petition, FDA will has opened a docket, FDA-2019-P-0777, to accept feedback from the regulated community and interested stakeholders. The docket can be found at: NMPF urges stakeholders to comment on the docket, ensuring that the agency continues to pay attention to this crucial consumer issue.