In a 2018 conversation about the Food & Drug Administration’s regulatory agenda, then-FDA commissioner Scott Gottlieb issued a shot-across-the bow to the nondairy industry, stating: “an almond doesn’t lactate.”  And around the time of his comment, Commissioner Gottlieb announced in an FDA press statement that he would have the FDA study “the wide variety of plant-based foods that are being positioned in the marketplace as substitutes for standardized dairy products. . . . For instance, we’ve seen a proliferation of products made from soy, almond or rice calling themselves milk.” The Commissioner also expressed concern about the health content of non-dairy milks and alluded to an issue enforcing dairy standards of identity if non-dairy milk is to be called “milk.” In fact, the standard of identity for milk currently on the books defines “milk” as “the lacteal secretion, practically free from colostrum, obtained from the complete milking of one or more healthy cows.” See 21 C.F.R. § 131.110(a) (2019). The issue is whether the federal government would act on the enforcement of this standard, potentially affecting the ability of non-dairy milk producers to label their products as “milk.”

Perhaps upsettingly for some, this area has been a hotbed of federal legislation and regulatory action. In the Senate, Senator Tammy Baldwin has perennially sponsored the “Dairy Pride Act,” which would bolster the standard of identity for milk, amend the Food, Drug, and Cosmetic Act to permit enforcement action against non-dairy “milk” as misbranded, and require the FDA commissioner to undertake enforcement action and report back to Congress. As of this writing, the bill has been introduced in the 2019-2020 session in both houses but remains in committee. 

On the regulatory front, the FDA recently called for “comments on the labeling of plant-based products with names that include the names of dairy foods such as ‘milk.’” The comment period closed in January 2019, with a total of 14,017 comments received. Large industry associations such as the National Milk Producers Federation and the Institute of Justice expressed interest in the comment process. Writing in support of FDA action against alternative milks, the NMPF characterized the plant-based food industry’s use of “dairy names” as “improper . . . in violation of the Federal Food Drug and Cosmetic Act.” Conversely, writing in opposition, the Institute of Justice cautioned against regulation on constitutional grounds, asserting that “the government is not allowed to ban businesses from making truthful statements on their beverage labels, and the determination of whether something is truthful is whether it comports with the common understanding, even when it directly conflicts with the government’s regulatory definition.” While no further action in this area has been taken yet as of this writing, it is clear regulatory efforts remain active and controversial.