The Merriam-Webster Dictionary provides a definition for milk which reads, “a fluid secreted by the mammary glands of females for the nourishment of their young.” However, Webster provides a secondary definition for milk which includes, “a food product produced from seeds or fruit that resembles and is used similarly to cow’s milk,” a definition which applies to coconut milk or soy milk. A pair of bills currently working their way through Congress is pitting the dairy and plant-based milk industries against each other as our nation’s elected representatives consider what type of beverage products are able to use the word “milk” as a trademark which can be used in marketing.
Both the U.S. House of Representatives and the U.S. Senate are currently contemplating versions of the Defending Against Imitations and Replacements of Yogurt, Milk and Cheese to Promote Regular Intake of Dairy Everyday (DAIRY PRIDE) Act; the House version is bill H.R.778 and the Senate’s is S.130. If passed, the bill would amend the Food, Drug, and Cosmetic Act to prohibit the sale of any food using the market name of a dairy product, is not the milk of a hooved animal, is not derived from such milk and doesn’t contain such milk as a primary ingredient. The findings section of the bill notes that the U.S. Food and Drug Administration (FDA) already has regulations finding that milk is “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” The Senate bill is originally sponsored by Sen. Tammy Baldwin (D-WI) while the House version is sponsored by Rep. Peter Welch (D-VT). The House bill includes five original co-sponsors: Rep. Michael Simpson (R-ID); Rep. Sean Duffy (R-WI); Rep. Joe Courtney (D-CT); Rep. David Valadao (R-CA); and Rep. Suzan DelBene (D-WA).
An article published by Bloomberg on September 7th quoted lobbyists and industry sources on both sides of the debate, noting that while the FDA hasn’t ruled in favor of either side, the DAIRY PRIDE Act would provide a legislative answer to an issue on which dairy milk groups have lobbied the FDA for years. Individual businesses and industry organizations alike have spent tens of thousands of dollars this year alone to lobby on measures including the DAIRY PRIDE Act. What may seem like splitting hairs to the typical U.S. consumer is a clear distinction to those in the dairy industry, a viewpoint summed up by a quote in the Bloomberg piece from Boyd Schaufelberger of the Holstein Association USA: “After milking animals for 40 years I’ve never been able to milk an almond.”
The plant-based milk industry has itself been lobbying the FDA for a few decades on the issue of soy milk. In February 1997, the Soyfoods Association of America filed a citizen petition with the FDA asking the agency to include new regulations covering common names for nonstandardized food covering soymilk, soymilk drink and soymilk concentrate. According to the current version of those nonstandardized food regulations, the FDA hasn’t approved such requests up to now.
Both sides of the debate have been digging deep trenches to support their position on the proper definition and marketing of milk products. The National Milk Producers Federation (NMPF) produced a one-pager on the bill which argues that the measure would protect the integrity of dairy products by enforcing existing labeling requirements. The NMPF’s position is that the use of dairy-related terms like “milk” to market plant-based beverages creates consumer confusion in the marketplace, an argument it raised in a letter addressed to the FDA and sent on August 29th. On the other side, the Good Food Institute is collecting signatures on a petition which will ask Congress to stop passage of the DAIRY PRIDE Act, calling the bill part of “a trend of well-funded ag interests attacking their plant-based competition, just like when the American Egg Board tried to keep Hampton Creek’s egg-free Just Mayo off the shelves.”
Part of the argument for restricting the use of the word “milk” on non-dairy products involves the nutritional differences between dairy milk and non-dairy beverages. Among the findings of the DAIRY PRIDE Act include the fact that dietary consumption recommendations published by the U.S. Department of Agriculture (USDA), the proper daily consumption of dairy foods for a single person provides 67 percent of their daily intake of calcium, 64 percent of vitamin D and 17 percent of magnesium. Across America, 80 percent of the public does not meet the recommended three-cup dairy equivalent per day. Adult females are especially prone to not meeting their daily intake; only 5 percent of American adult females reach the three-cup dairy equivalent dietary recommendation each day.
The bill’s language further acknowledges that the same dietary guidelines from the USDA state that levels of important nutrients like vitamin D and potassium vary among plant-based alternatives to milk. Further, calcium levels are much lower among all plant-based milk alternatives so obtaining the amount of calcium prescribed by the USDA’s dietary guidelines requires greater portion size and calorie intake than with traditional dairy milk.
If passed, the DAIRY PRIDE Act would amend the language of Section 403 of the Food, Drug, and Cosmetic Act (21 U.S.C. § 343), the part of that law which governs misbranded foods which can be restricted from the marketplace. The bill would add a new section (z) to the statute which would restrict the sale of products branded as milk if it does not meet the criterion for being a dairy product as currently defined by the FDA. The regulation would also extend to other dairy products, such as cheese or yogurt, which would have to be made from actual dairy and not plant-based alternatives such as almonds, rice, nuts or coconut.
The legislation seems to make a lot of sense given the nutritional impacts of substituting plant-based alternative for dairy in milk and other food products. Especially given that an overwhelming majority of Americans don’t get the proper level of dairy into their daily diet, restricting the use of the term “milk” on non-dairy products could help encourage consumers to eat more dairy. The Food, Drug, and Cosmetic Act already restricts the sale of items misrepresenting certain nutrition levels, such as cholesterol or saturated fats, it’s not unreasonable to think that the agency should restrict the sale of an item which consumers may think provides a greater amount of calcium or vitamin D. No one would stop anyone from pouring almond drink or soy beverage over their cereal, so plant-based converts could continue to enjoy their non-dairy alternatives. Observing marketplace restrictions which are based upon the definition of “milk” doesn’t seem to be an overreach of government power and could actually provide a positive impact on the health of the American consumer.