At a Politico event in D.C. on Tuesday, FDA Commissioner Scott Gottlieb announced the organization would start targeting plant-based beverages that call themselves “milk.” “If you look at our standards of identity, there is a reference … to a lactating animal. An almond doesn’t lactate, I will confess,” he said. “So the question becomes, Have we been enforcing the standard of identity? And the answer is probably not.”
While Gottlieb’s comment may have sounded like an improv bit — “Hey, what’s the deal with oat milk?” — it’s likely that a guidance document that outlines proposed FDA regulatory changes is in the pipeline. Possible new rules about what products are allowed to call themselves milk may be here by the end of 2019, in part because of lawmakers’ and lobbyists’ long-running and at times quixotic effort to decimate the nondairy industry.
There’s no better time for the government to push rules that would force manufacturers to take the word “milk” off cartons and Tetra Paks of cashew, almond, soy, rice, quinoa, macadamia milk, and more. Even oat milk, a relative newcomer to the alt-milk scene that was celebrated in perhaps the most disturbing New York Times graphic ever, would in theory have to rebrand.
Gottlieb likely sees an opportunity to take all the players out in one shot. This is, after all, an administration in which environmental honchos banished the words “climate change.” Despite that, advocates for plant-based foods are surprisingly optimistic.
“Our advice to the milk industry is be careful what you wish for,” said Bruce Friedrich, the co-founder and executive director of the Good Food Institute. “What they want is a nanny state, which people generally oppose. It would favor censorship, which people also dislike. And it would go against fair competition and markets, which are things most people support. Plus, they’ll lose in the end. We have most pro–free speech Supreme Court in history.”
For such a bland food, milk is proving to be a surprising source of reflux in 2018. The slow decline of America’s milk consumption has caused a crisis. A per-person average of 30 gallons a year in the ‘70s has become just 18 gallons today. Cows’ milk is an increasingly harder sell in a marketplace of alternatives. Other animals are involved; there’s even a burgeoning camel-milk fad, and an enterprising South African company selling “milk” made from Hermetia illucens, a wasplike insect.
But a recent Nielsen survey found that from 2012 to 2016, sales of such “cow-nterfeits” — to borrow a clunky National Milk Producers Federation portmanteau — increased by 250 percent, to just shy of $1 billion. That same year, members of Congress banded together to take the imitators down: Wisconsin senator Tammy Baldwin introduced the acronymic DAIRY PRIDE Act. Lawmakers sent the FDA a letter that warned against the “mislabeling of imitation ‘milk’ products.” It was just the latest salvo in a long way. It was, after all, nearly 20 years after the Soyfoods Association petitioned the FDA to recognize “soy milk” as its own thing.
As it happens, Gottlieb isn’t wrong about the official definition: “Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” In a statement Tuesday, the National Milk Producers Federation, which must really hate almonds, argued Gottlieb’s announcement is finally proof “the jig is up.”
The alt-milk contingent contends stripping the word off nondairy products would create more confusion, not less; “oat juice,” after all, sounds terrible. “Consumers understand exactly what almond milk is, but maybe not ‘almond beverage,’” said Michele Simon, executive director at the industry’s primary trade group, the Plant Based Foods Association.
“It’s the same reason that rice noodles can be called ‘rice noodles’ despite the fact they don’t fit the FDA’s standard of identity for rice,” said Bruce Friedrich, “and gluten-free bread can be called bread despite not fitting the definition for bread.” Plant-milk manufacturers often market their products as an improved version of milk (dairy-free, more calcium, fewer calories, less sugar, more easily digested, good for those with allergies and lactose intolerance, etc.), but “almond beverage” is like what Kraft Singles are to cheese, which is to say inexorably and irredeemably inauthentic.
Nondairy rivals exploit traditional milk’s supposed “health halo.” While milk does contains important nutrients, several more are added by fortification, as is the case with orange juice. Research suggests exercise and vitamin D are needed for strong bones, but not so much milk, specifically. As ancillary points, more Americans aren’t eating animals these days, there’s a documented rise in our lactose intolerance, and milk prices hit near-record highs a few years ago. As the food expert Marion Nestle summed it up last year, “Milk is the perfect food — for calves.”
John Cox, the executive director of Soyfoods Association of North America, said in a statement that the term “soy milk” has been used commercially since 1947 and in USDA materials since 1963. “Consumers are accustomed to using products with names similar to other foods, such as peanut butter, almond butter, or apple butter. As we all know, these products don’t contain dairy-derived butter, but no one is confused as to the contents of either product,” he notes.
But the dairy industry groups never came after peanut butter, and the FDA even gave it a bona fide standard of identity back in 1977. And as far back as 1797, Encyclopedia Britannica gave a limp stamp of approval to alt-milk. “For the same reason milk of animals may be considered as a true animal emulsion, the emulsive liquors of vegetables may be called vegetable milks,” it advised, in an authoritative declaration dredged from the archives by Slate science writer Daniel Engber. (The reference book’s authors also wrote almond milk was somewhat “artificial.”)
John Cox’s group was quick to add that survey results indicate 98 percent of shoppers don’t confuse soy milk with normal milk. They purchase plant milk not because they got tricked, but because “they know it’s not from dairy.” The Plant Based Foods Association also did a recent poll showing 78 percent of people who drink cows’ milk exclusively call the alternatives “milk,” and 41 percent of all consumers buy both kinds.
Commissioner Gottlieb seemed to understand the Pandora’s box he opened with Tuesday’s remarks. “If you open up [the FDA’s] standard of identity, it talks about a lactating animal. But if you open up a dictionary, it talks about milk coming from a lactating animal or a nut,” he said. “Invariably we’re going to get sued, probably.”
A First Amendment challenge is very likely “if the ruling doesn’t go our way,” said Michele Simon, who adds that she has confidence in the FDA’s process. The dairy industry’s tactics that bother her more. “I understand why they’re upset,” she said. “But our industry is not their foe. It breaks my heart to hear the decline of American dairy farming being blamed on almond and soy milk. It sells false hope to dairy farmers. I wish these lobby groups would look for real solutions to this problem, and quit making plant-based alternatives their punching bag.”