What could be simpler than defining a glass of milk? It turns out that it’s not so simple.
This week, the Good Food Institute in Washington, DC submitted to the US Food and Drug Administration (FDA) a 59-page petition for the agency to issue a new rule to end the longstanding debate over whether plant-based milks can use the term “milk” to market their products. The dairy industry thinks plant-based companies should avoid the word altogether, while the startups argue it should be fine so long as they aren’t trying to pass their products off as conventional milk.
This legal dust-up over the meaning of the word “milk” is only a precursor to the wild and wooly debate over the future of food on the horizon, one that stands to catch the attention of all three branches of the American government. Dairy is in the spotlight now, but the fight over milk is a proxy for a larger battle over what plant- and cell cultured-foods will be able to call themselves as they become more mainstream. After all, we’re just starting to consider the concept of plant-based meatless burgers.
This particular dairy controversy has arisen with the ascendancy of more and more such plant-based food companies selling themselves as milk—there’s not just run-of-the-mill cow milk, but also goat, soy, almond, cashew, lactose-free, and chocolate milks. And don’t forget the organic brands, or hemp, flax, coconut, and rice varieties.
Caught in the middle are consumers and dairy farmers who, after generations of pumping the milk to feed the nation—remember the iconic, two-decade-long Got Milk? campaign—are left feeling under siege.
“You haven’t ‘got milk’ if it comes from a seed, nut, or bean,” Jim Mulhern, the president of the National Milk Producers Federation, said in response to a Congressional effort to crack down on alternatives to cow milk. “In the many years since we first raised concerns about the misbranding of these products, we’ve seen an explosion of imitators attaching the word ‘milk’ to everything from hemp to peas to algae.”
But defining milk isn’t as straightforward as the dairy lobby characterizes.
No, we ain’t got milk
The uptick in the American public’s interest in milk alternatives has been swift and steady, in part because of skepticism toward fat. A decade ago, Americans were spending about $1 billion on them, a number that has since doubled. Meanwhile, conventional milk sales—which still dominate—dropped by about 17% to $13 billion in 2016, according to Euromonitor.
Milk companies are feeling it as plant-based upstarts begin to nibble away at market share. During this shift, dairy companies have filed numerous lawsuits against plant-based companies over use of the term “milk.”
At least two have been filed already this year—one in Los Angeles against Blue Diamond Growers and another against a subsidiary of WhiteWave Foods (owned by French dairy giant Danone). Usually such lawsuits are dismissed, but addressing them can be costly and time consuming. And there is past precedent that they’ll have to contend with.
In October 1973, for instance, the FDA acknowledged that “chocolate milk” would be allowed because it didn’t purport to be or represent itself as conventional milk. And there are major players in the dairy industry that have expressed little concern for plant-based nomenclature. In March 2000, the nation’s largest milk producer, Dean Foods, submitted a letter to the FDA saying it had no problem with the term “soy milk.”
Plant-based groups insist they should be able to use the term “milk” when selling their products, so long as they aren’t trying to pass off their products as being conventional milk. They feel so strongly that they’re now arguing it’s a freedom of speech issue, protected by the US constitution. The petition submitted to the FDA by the Good Food Institute asks the agency to issue a new rule to end the debate and allow them to market their products as types of milk as a matter of commercial speech.
“Companies have a first-amendment right to use product names that are clear to their consumers,” says Nigel Barrella, an attorney for the institute. And Barrella expects a new rule to go beyond milk, clearing a path for plant-based meats, cheeses, and seafoods, too.
But the dairy industry characterizes plant-based milk products as interloper foods masquerading conventional milk without the nutrition profile—which includes calcium, vitamin D, and protein—to back it up. To get its point across, it’s embarked on an advertising campaign with the hashtag #GetReal, complete with commercials.
To force the issue, the dairy industry helped draft new legislation—the Dairy Pride Act—that has gotten bipartisan support from a handful of congressional lawmakers hailing from dairy-producing states, including Wisconsin, California, and Minnesota. The law, if eventually passed, would require that non-dairy products made from nuts, seeds, plants, and algae no longer be labeled with dairy terms such as milk, yogurt, and cheese.
Even if the industry manages the herculean task of pushing that bill through Congress, it will likely do very little to solve its more pressing existential crisis, which is figuring out a way to get people to drink more milk. Per-capita consumption of fluid milk in the US has dropped by more than 37% since the 1970s.
Some question whether conventional milk companies are wasting their time and resources focusing their attention on fighting plant-based milk.
“Their house is on fire and they’re trying to clear the smoke instead of put out the flames,” says Nicki Briggs, a consultant to several food tech companies, including Perfect Day, which is developing a cow-free milk.
Now that the petition is submitted, the FDA has about four months to pull together a response. In the meantime, the plant-based companies are going to be working to shore up support within their industry and beyond, trying to get the issue as much attention as possible in hopes the FDA will notice and feel additional pressure to respond.
The Trump factor
The US president may be a fan of junk food (paywall) and burgers, but Donald Trump’s politics may actually align with plant-based interests. In late January, Trump signed an executive order mandating that for every new regulation created, two must be revoked. Proponents of plant-based companies say they see this as an opportunity.
“I’m not going to reveal all of the the strategic considerations behind it, but if this administration is serious about decreasing regulatory burdens on companies, this would be a pretty big one,” Barrella said, noting that current regulations make it harder for small plant-based companies to establish themselves.
And even if the American executive branch doesn’t side with plant-based arguments, people in that industry are feeling confident that battling the issue in the courts system would likely lead to an outcome they’d like.
Trump has inherited more than 100 vacancies (paywall) across the judiciary—two times the number former president Barack Obama inherited—and is expected to nominate more conservative judges to those positions. In doing so, it would increase the likelihood that the courts would uphold issues of commercial speech, a ruling conservatives judges tend to favor, including Trump’s nominee for the Supreme Court—an outcome that would surely spill a lot of conventional milk.
Companies have long bickered about how their businesses are regulated, but this food fight is distinctive because it challenges political norms—forcing progressives and traditionalists alike to challenge their world views. On one hand, the people who eat and make plant-based foods are often lumped into a brand of hipster, metropolitan liberalism derided by so-called “red meat” conservatives. But in this case, it’s the environmentally conscious bunch seeking less regulatory red tape and more freedom of (commercial) speech. It’s a reminder that, of all the partisanship raging through American discourse, debates over food continue to walk a blurred line.
“Consumer preferences are changing and consumers are really in the driver’s seat,” says Briggs. “Whether it’s dairy or [older] conventions in Big Food, it’s happening. The issue is much larger than dairy.”