Just a week before a meeting on FDA’s Nutrition Innovation Strategy, FDA Commissioner Dr. Scott Gottlieb made some provocative comments regarding Standards of Identity (SOIs) and labels for plant-based milks. Dr. Gottlieb stated that he expects the FDA will modernize SOIs and create guidance that would lay out a new way of enforcing the SOIs for milk, potentially disallowing terms like “almond milk” and “soymilk” on labels.
As part of this process of modernizing Standards of Identity and determining labels, the FDA is soliciting comments. On Monday, July 23, GFI’s Director of Policy Jessica Almy, Esq. submitted a letter to the commissioner, in which she references GFI’s 2017 Petition to Recognize the Use of Well-Established Common and Usual Compound Nomenclatures for Food. An excerpt from Jessica’s letter to Commissioner Gottlieb:
Indeed, the FDA has long recognized that the standard of identity for “milk” applies only to the use of the unqualified term, and not to qualified uses. In issuing its regulation establishing the identity standard for “milk,” the FDA stated that this identity standard would not prevent the use of the term “milk” for “flavored milk products,” concluding that “[s]ince flavored milks, such as chocolate milk, do not purport to be and are not represented as milk, their distribution as nonstandardized foods could be continued after the establishment of an identity standard for milk.” It is equally clear that almond milk, other plant-based milks, and even milks from other animals (such as goat milk) do not purport to be “milk.” Without a labeling violation, the FDA’s enforcement discretion is not at issue.
What’s next? Efforts to ban the terms rice noodles and almond butter?
The Good Food Institute is a proponent of protecting plant-based companies’ First Amendment rights to label their products using words that consumers understand. Importantly, we have the law on our side, as we explain in this First Amendment Fact Sheet. Two of our favorite cases:
- In 2013, plaintiffs sued the maker of Silk plant-based milks. Judge Samuel Conti ruled in favor of the company, finding that the plaintiffs’ claim that they had been deceived “stretches the bounds of credulity” and that “under plaintiffs’ logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”
- In 2017, Judge Stephen V. Wilson dismissed a lawsuit alleging that almond milk marketing was misleading on the basis that consumers falsely believed that almond milk had the same nutritional profile as dairy milk. “No reasonable consumer could be misled by Defendant’s unambiguous labeling and factually accurate nutrition statements,” his opinion read. “By using the term ‘almond milk,’ even the least sophisticated consumer would know instantly the type of product they are purchasing.”