Got lacteal secretions from healthy cows? The FDA, the DAIRY Pride Act, and “milk” in food names
We all remember the California Milk Processor Board’s famous question. But before we can ask ourselves if we’ve got milk, we need to agree on what milk is.
A fellowship of US Congresspeople is pushing a bill (the DAIRY Pride Act) that would ban non animal-based drinks from being called “milk,” “yogurt,” or “cheese.” Are you ready to drink almond juice?
The legislators involved all hail from big dairy states, and their intent is obvious. Traditional milk consumption is quickly giving way to consumption of plant milks made from soy, rice, and nuts. Dairy producers know that consumers would be less likely to dunk cookies in soy milk if it were called “soy juice.” So instead of crying, they are trying to stop the plant-based milk from being called “milk” at all.
Before we talk about food naming protocol, here’s some history about the word milk. The term soy milk has been around for at least 100 years. Coconut milk for 120. Almond milk has actually been around since the middle ages — it was commonly used because cow’s milk spoiled faster. Additionally, milk as a word is also broader than a mere ingredient. It’s a verb, it’s part of numerous colloquialisms (milk money, cry over spilt milk, land of milk and honey), and carries connotative, metaphorical, and even mythic meaning.
So the first logical question is, where does the literal definition stop and the metaphorical definition begin? The word milk in Silk Soymilk leans on milk’s connotations in a way that the milk in Muscle Milk does not. A literalist could argue that many food product names are misleading. Does Smartfood Popcorn increase IQ? Are Swedish Fish caught in Scandinavia? You get the idea.
Consumers often assume, and rightfully so, that what’s in the brand name is what’s in the jar. But where do we draw the line? Why are these lawmakers concerned that milk in plant-based brand names will confuse consumers, but not worried the public will think Muscle Milk is the product of squeezed deltoids, or be confused by the use of the word butter in the name I Can’t Believe It’s Not Butter? The Can’t Believe brand has not been challenged as misleading, even though the size of the word butter is much bigger than all the other words in the logo. If the bill passes, it follows that this product would need to be renamed along with the soy and almond beverages.
Note, this bill isn’t just about brand names. Food product labels include the brand name, such as Muscle Milk, Silk, Almond Breeze, and Rice Dream, as well as the food identity name (the type of food or beverage the product is), such as soy milk (or soymillk, as the Soyfoods Association of North America prefers), non-dairy beverage, almond milk, and rice drink. Current FDA regulations require that food labels include a statement of identity:
“The name established by law or regulation, or in the absence thereof, the common or usual name of the food, if the food has one, should be used as the statement of identity. If there is none, then an appropriate descriptive name, that is not misleading, should be used.”
They even permit more fanciful names, as long as consumers won’t be confused:
“When the nature of the food is obvious, a fanciful name commonly used and understood by the public may be used.”
These regulations still leave a lot up to interpretation by the government. (It’s a lot like trademark law in that way.) What it all boils down to, though, is these questions: Is the content obvious to a consumer? Will consumers be misled by the name?
The dairy lobby has argued that consumers
“have been misled into believing that the plant-based ‘milk’ was nutritionally equivalent to or better than cow milk when the products actually lack many of the essential nutrients and vitamins provided by cow’s milk” (FDA Law Blog 3/8/17)
If that misunderstanding is proven to be the result of the use of the word milk, then the dairy producers concerns about the labeling are justified. However, consumer misunderstanding about the nutritional value of almond, soy, coconut, and rice beverages may have nothing to do with use of the word milk, and so would only be remedied by a clear listing of nutritional content, rather than a change in the descriptor.
The current FDA definition of milk is
“the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”
If this description were strictly enforced, goat, sheep, and human milk would no more be “milk” than soy, almond, or coconut. How shall we label chevre, then – cultured goat lacteal secretion?
As with the application of most regulations, common sense should prevail over the letter of the law. The FDA’s treatment of eggless mayonnaise shows such a common-sense path. The FDA’s legal definition of mayonnaise states that it must contain eggs. However, in 2015, the FDA decided that Hampton Creek could keep the brand name Just Mayo for its eggless spread but must change the label to ensure “products are labeled in a manner that is truthful and not misleading.” Hampton Creek added the words Spread & Dressing as the food identity and the phrase Egg Free to the front of its labels.
Catchword recommends a similar solution to the milk shakeup. (And since the real issue seems to be lost revenue for dairy farmers, we also recommend lawmakers and the dairy lobby find productive ways to help these farmers. After all, trying to restrict the livelihood of another set of farmers doesn’t help the community as a whole.)
The milk bill seems unlikely to pass, and it shouldn’t, but we’ll see how the cookie crumbles in Washington.
Until then, if you have any questions about what is misleading and what is not in food and beverage naming, let us know! We’re here to help.
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