Attempts to legislatively constrain the English language are rarely successful. There are many reasons for this, both legal and practical. Yet, the appetite for such efforts, especially in the food industry, seems to be all but insatiable. This article explores ongoing attempts to constrain the use of the term “milk,” and the legal battles being waged in furtherance of that pursuit.
The online Merriam Webster dictionary offers several definitions of “milk.” The first is “an opaque white fluid rich in fat and protein, secreted by female mammals for the nourishment of their young.” Another is to exploit or defraud someone. FDA’s standard of identity for milk provides that “nilk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” The FDA’s standard of identity of course excludes the milk from goats and other mammals. One final definition from Merriam Webster is “a liquid resembling milk in appearance, such as the latex of a plant or the contents of an unripe kernel of grain.”
In recent years, significant acrimony has arisen over which types of products may be called “milk.” Throughout the country, laws are being enacted and battles are being waged—both in the court of public opinion and the actual courts—over what types of products may be called milk. The increasing popularity of plant-based milk alternatives is largely attributable to shifting views about the health benefits of cow’s milk and the moral implications of animal agriculture, which include concerns about animal welfare, environmental impacts, and perceptions about the nutritional value of plant-based products.
In response to the explosive growth of plant-based dairy alternatives, i.e., almond milk and oat milk, the dairy industry has vociferously argued that using the term “milk” in the names of these products should be prohibited. According to the National Milk Producers Federation, “Dairy farmers take great pride in their high-quality, nutritious dairy products and have spent many decades building consumer confidence in them. Imitations should not be allowed to unfairly capitalize on these associations, especially in ways that encourage inadequate nutrition and consumer confusion.” The organization further advocates for efforts to end the “continued proliferation and marketing of mislabeled non-dairy substitutes for standardized dairy foods misrepresented as ‘milk,’ ‘cheese,’ ‘butter,’ ‘yogurt,’ ‘ice cream,’ or other dairy foods.”
Conversely, the Good Food Institute (GFI), an organization that advocates on behalf of plant-based products, contends that consumers are not fooled by plant-based dairy alternatives. The GFI asserts itself as a proponent of protecting plant-based companies’ first amendment rights to label their products using words that consumers understand. Echoing recent court holdings, GFI argues that no reasonable consumers are misled by the term “almond milk,” which any consumer instantly understands is not cow’s milk.
Legislation and Regulation
Politically, the campaign for and against plant-based dairy alternatives has been bipartisan. In April 2021, U.S. Senator Tammy Baldwin (D-Wisc.), who is the chair of the Senate Agriculture Appropriations Subcommittee, and U.S. Senator Jim Risch (R-Idaho) reintroduced the Dairy Pride Act, a piece of federal legislation that seeks to force FDA to take punitive measures against food producers that use dairy terms, such as “milk,” “cheese,” and “yogurt,” to describe plant-based dairy alternatives. The act previously stalled in the legislature, and it is unclear whether it will pass this time around.
From a regulatory standpoint, the debate hinges on whether these products are misleading or misbranded. The Food, Drug, and Cosmetic Act (FDCA) prohibits the introduction or delivery into interstate commerce of any misbranded foods. A food is misbranded if it violates any of the voluminous and arguably arcane labeling regulations intended to prevent manufacturers from misleading consumers about the make-up or nutritional value of foods. Under these regulations, a food is misbranded “if it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations.”
FDA has historically posited that the standard of identity for “milk” only applies to the use of the unqualified term. As such, if a producer of almond milk simply labeled their product as “milk,” it would be mislabeled. Indeed, when the regulation establishing the identity standard for “milk,” was promulgated, FDA stated the standard would not preclude the use of the term “milk” for qualified products like chocolate milk. By way of comparison, there are other similarly situated foods, such as corn bread and rice noodles, which are not bread or noodles in the traditional sense. According to GFI, it’s equally clear that almond milk and other plant-based milks do not purport to be “milk.”
For several years, FDA has been reviewing whether these terms are likely to mislead or confuse consumers. In a July 2018 statement, Scott Gottlieb, MD, then-FDA Commissioner, stated that, “Because these dairy alternative products are often popularly referred to as ‘milk,’ we intend to look at whether parents may erroneously assume that plant-based beverages’ nutritional contents are similar to those of cow’s milk, despite the fact that some of these products contain only a fraction of the protein or other nutrients found in cow’s milk.” It is unclear at this point what that review has found or whether it remains ongoing.
The cases that have been decided to date have been largely unfavorable to opponents of plant-based dairy alternatives.
In Gitson v. Trader Joe’s Co., the plaintiffs sued to enjoin the sale of soy milk, arguing they were misled to believe that organic soy milk complied with FDA’s standard of identity for milk and that organic soy milk provided quality, taste, and nutritional benefits comparable to cow’s milk.
The court disagreed with the plaintiffs and held that the standard of identity regulation “simply means that a company cannot pass off a product as ‘milk’ if it does not meet the regulatory definition of milk.” The court assested that it was implausible to believe that a reasonable consumer would believe soy milk is cow’s milk and has the same qualities as cow’s milk. In granting the extraordinary relief of dismissing the case, the court reasoned that Gitson was “one of those rare cases where the accused label itself makes it impossible for the plaintiff to prove that a reasonable consumer is likely to be deceived.”
Ang v. Whitewave Food Co. resulted in a similar outcome. In this case, the plaintiffs alleged that the defendants had misbranded Silk products by using names like “soymilk,” “almond milk,” and “coconut milk,” since the Silk products are plant-based, and FDA defines “milk” as a substance coming from lactating cows (the “milk claims”). The court forcefully rejected the plaintiffs’ argument. In its decision, the court asserted that the names “soymilk,” “almond milk,” and “coconut milk” accurately describe Defendants’ products.
Further, the court noted that the name “almond milk” clearly conveyed the basic nature and content of the beverages, while simultaneously distinguishing them from cow’s milk. “Moreover, it is simply implausible that a reasonable consumer would mistake a product like soymilk or almond milk with dairy milk from a cow. The first words in the products’ names should be obvious enough to even the least discerning of consumers,” the court concluded. Of particular import, the court reasoned that adopting the plaintiffs’ position could increase confusion, “especially with respect to other non-dairy alternatives such as goat milk or sheep milk.”
The court went so far as to compare the plaintiffs’ claims in Ang to those in another case, Werbel ex rel. v. Pepsico, Inc. In Werbel, in which the plaintiff claimed to have believed “Cap’n Crunch’s Crunch Berry” cereal derived its nutrition from actual fruit because of its label’s reference to berries and because the “crunch berries” resembled real berries. The court derided the allegations as “nonsense,” observing that the word “berries” was always preceded by the word “crunch” and that the crunch berries depicted on the label did not remotely resemble any naturally occurring fruit.
These disputes highlight an important area of tension in the law. On the one hand, it’s critically important to maintain prohibitions against deliberately misleading or deceiving consumers. On the other hand, society must take great care not to enact linguistic prescriptions, especially for the purpose of granting a commercial advantage to one industry over another. Banning the use of descriptive terms, even if they might conceivably be misconstrued by some consumers, is a very slippery slope and one that can have far-reaching and devastating implications. As for the use of dairy terms to describe plant-based products, it’s fair to say there are reasonable arguments on both sides. However, to the extent a manufacturer goes too far, marketing a product that is in fact misleading, there are many remedies available to address that situation under the current civil and regulatory framework. As such, the courts will likely continue to reject further restraints. What state and federal legislators and regulators may do, however, is uncertain.
The only thing that is certain is that the lawyers will continue to milk this issue for all it’s worth.
Chappelle is a food industry lawyer and a consultant at Food Industry Counsel, LLC. Reach him at email@example.com. Stevens, also a food industry attorney, is a founding member of Food Industry Counsel, LLC. Reach him at firstname.lastname@example.org.