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CEO's Corner:

Proper Preparation Perpetuates Progress on Plant-Based Labeling

March 1, 2023

The late-February release of proposed FDA guidance on the labeling of plant-based beverages is far from what dairy producers want or consumers deserve.

The agency’s justification of terms including “almond milk,” “soy milk” and other terms as commonly accepted relies on circular reasoning, using its previous non-enforcement of its standards of identity to justify further inattention. And as guidance, the portion that does improve the consumer marketplace – front-of-packaging disclosures by plant-based beverages of their inferiority to dairy – does not have the same strength as regulation. FDA can “guide” a manufacturer, but company disclosures are voluntary. The good news is that most companies follow such voluntary guidance for fear of bad publicity or legal challenges.

As such, FDA’s proposal contains a major win for dairy: the acknowledgment that consumer confusion over nutritional content is a public health issue that requires agency intervention. For nearly a decade, that’s been NMPF’s core argument against the mislabeling of plant-based beverages. And by accepting it, FDA has laid the groundwork for our work toward the logical conclusion of the need to end nutritional confusion: Reserving the use of dairy terms for dairy products only, in keeping with FDA’s own standards of identity. We’re on the right path, and FDA’s guidance can directly contribute to our own eventual success.

A bit of background: Three decades into what’s been a more than four-decade struggle to get FDA to take this issue seriously, in the early 2010s, the issue was in an unsatisfying stasis. NMPF would complain, and nothing would happen. Meanwhile, plant-based imposters were proliferating in the marketplace, to the detriment of public health. Beginning in 2015, we at NMPF zeroed in on the real issue of nutritional confusion – dismissing the plant-based red herring that “consumers know it’s not dairy, they’re not confused” to more accurately describe what “confusion” really meant: the mistaken belief that plant-based beverages provided the same level of nutritional benefits as real dairy.

We hammered that point home at every opportunity, to the extent that, when then-FDA Commissioner Scott Gottlieb was asked about nutritional confusion in a 2018 hearing, he had been informed enough about the issue to make his famous “confession”: “An almond doesn’t lactate, I will confess.”

With that acknowledgment we pushed even harder. Through quality submissions to an FDA comment period on the issue, through constant attention to the issue through the media, through tough questions from dairy’s allies in congressional hearings, we helped FDA – and importantly, consumers, who in 2022 drank a lower volume of plant-based beverages than the year before – understand the importance of the issue. We offered our own road map on labeling through a 2019 Citizen’s Petition. And with allies including the American Academy of Pediatrics and the School Nutrition Association, we showed it wasn’t just dairy that cared about consumer confusion – education and health professionals did as well.

And that brought us to last week. While FDA clearly wanted to cover over its decades-long failure to enforce existing standards by giving the plant-based folks the ability to use “milk,” the nutrition disclosure recommendations and the acceptance of nutritional confusion as a public health issue are powerful tools with which we can move forward in pursuit of full transparency. First of all, FDA’s concern for the issue adds impetus for what’s now the most promising immediate solution to the problem – congressional passage of the DAIRY PRIDE Act, which would require FDA to enforce milk’s standard of identity in the name of solving the very problem it’s identified.

Second, though FDA guidance is non-binding, as I’ve noted, it’s something industry takes seriously. We will be watching corporate practice on labels – and we won’t accept labeling that ignores FDA’s guidance or clearly attempts to do as little possible to get by. The plant-based industry is built on misinformation, and we expect old habits to die hard. But we’re in a new landscape, and we’ll make sure that consumers gain maximum benefit from the changed regulatory environment by reminding them of the nutritional inferiority of various fake milks.

This journey is far from complete. FDA has opened a comment period on the guidance that’s open until April 24. We have a call to action here that allows you to tell the agency not to backslide on its guidance, and in fact to go further to protect consumers. Momentum is on our side, and it’s gratifying to see an approach we consciously understood nearly a decade ago yield benefits that will only increase.

But it’s not time to let up on the gas, as our work is far from complete. We’ll take what FDA has offered. And we’ll make it even better in the future.

Jim Mulhern

President & CEO, NMPF