two glasses of milk

The Cry Over Fake Milk

A debate has been brewing between the cattle milk industry and the plant-based milk industry (producing drinks made from ingredients such as almonds, soy, and rice), regarding what products can actually be labeled “milk.”

This has motivated the Federal Drug Administration to review how milk is defined under federal regulations, in order to protect public health and ensure that consumers are purchasing what they expect based on a product’s label.

The controversy has expanded to issues of legal and linguistic interpretation with respect to the FDA’s “standards of identity,” which are described as “legally binding definitions of products to ensure consumers know what they are getting.” 

According to the FDA’s standard of identity, milk is defined as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” And as FDA Administrator Dr. Scott Gottlieb explained at a POLITICO Pro Summit in July, “an almond doesn’t lactate,” acknowledging that the FDA likely has not been enforcing its own standard of identity with respect to milk. Under the Federal Food, Drug, and Cosmetic Act, food that is represented as a food for which a regulation does prescribe a standard of identity is “misbranded” if it does not conform to that definition and standard.

While the acknowledgment that the FDA has not been enforcing its standard of identity correctly could be good news for the cattle milk industry, there are compelling arguments on both sides of the dispute over whether plant-based milk alternatives should be allowed to call their products “milk.”

There appear to be at least two different rationales for arguing against allowing these substitutes to label their products “milk.” First, from an economic standpoint, these alternatives are competing for dairy milk’s business, and using the name “milk” allows producers of plant-based alternatives to “take advantage of the milk ‘brand,’” and “suggest a healthy beverage that would provide an advantage to their product.” And these fears do seem to be justified. In the 12 months through June 2018, consumption of plant-based drinks has increased by 9 percent, while sales of cow’s milk dropped by 6 percent, and “[p]lant-based milk now represents 15 percent of the total milk market.”

Second, as Gottlieb explained in a July 2018 statement, from a health and nutrition standpoint, many are concerned that labeling plant-based alternatives as “milk” guides consumer decisions in misleading ways that can impact health. The nutritional values of cow’s milk and plant-based alternatives are not the same.

For example, this study showed that the protein content of cow’s milk greatly exceeds that of its plant-based competitors, with the exception of soy milk, and because there is a lack of data on the bioavailability (which measures how nutrients are absorbed and used by the body) of fortified nutrients in plant-based milk alternatives, it is difficult to truly compare the alternatives.

On the other hand, a PBFA study demonstrated that consumers are aware that they are not purchasing cow’s milk when they buy an alternative that is labeled “milk,” with many consumers intentionally purchasing both cow’s milk and a plant-based alternatives, thus diminishing the concern that the “milk” label misleads consumers. The survey also found that consumers prefer the label “milk” to be used for plant-based milk alternatives, rather than labels such as “beverages” or “drinks.”

Additionally, people have many different motivations for choosing to consume plant-based milk alternatives, such as dietary, ethical, or allergen reasons. If preferences and moral priorities are developing, and consumers are aware that they are purchasing a plant-based drink, is it necessary to wait for the FDA to update its standards to fit those modernized views and tastes before allowing the “milk” label to expand to other products? As the executive director of the Plant Based Foods Association (PBFA) stated, “[n]o one owns the English language.”

This debate raises questions, though, about what should be driving the decision of what can be labeled “milk.” As argued by a senior nutritionist at the Center for Science in the Public Interest, the FDA’s focus should “prioritize public health” and disclosing nutritional information to consumers so that they are best able to compare the nutritional value of the products they  consider purchasing, rather than feuding over the definition of “milk.”

This discussion fits within the larger themes of the FDA’s Nutrition Innovation Strategy, announced in March 2018 as a plan to improve public health and reduce disease and death linked to poor nutrition.

Requests for the FDA to reevaluate standards of identity for dairy products were among the motivating factors for FDA to include modernizing standards of identity among the key elements of this strategy.

Rebecca Friedman is a 2018-2019 Student Fellow at the Petrie-Flom Center. 

Rebecca Friedman

Rebecca Friedman

Rebecca Friedman graduated from Harvard Law School in 2019. Prior to becoming a Student Fellow, she participated in the Health Law and Policy Clinic with HLS' Center for Health Law and Policy Innovation. At the time she completed her Fellowship, Rebecca planned to work at Charlotte Center for Legal Advocacy in Charlotte, North Carolina as an Equal Justice Works Fellow sponsored by Kilpatrick, Townsend & Stockton LLP. There, Rebecca will provide direct representation to Medicaid beneficiaries experiencing legal challenges as North Carolina transforms its Medicaid system to managed care, and will work to ensure that Medicaid beneficiaries facing legal issues as a result of social determinants of health receive appropriate support. As a Petrie Flom Center Student Fellow, Rebecca studied the potential for Medicaid to cover doula services and analyzed how racial and socioeconomic disparities in prenatal care and childbirth could be mitigated as a result. The current title of Rebecca’s paper is “The Feasibility and Potential Impact of Broader Medicaid Coverage of Doula Services on Racial and Socioeconomic Disparities in Birth Outcomes.”

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