The FDA Is Planning To Ban Terms Like “Almond Milk” And Similar Phrases

The WinePress recently reported how that France ruled earlier this year to do something identical, though an organization representing a handful of different companies succeeded in obtaining a temporary stay on that ruling.

France Suspends Use Of Calling Plant-Based Alternatives “Meats”

At the end of March the FDA submitted a draft of the legislation for the of “labeling of plant-based milk alternatives” to the Office of Management and Budget, the group who the ultimately gets the final stay. When asked in April during a Senate hearing about making the change, Commissioner Robert Califf said,

We’re moving along quickly and it’s a priority to get this done, so I can assure you it will get done.

Wired wrote at the time: ‘These answers must have delighted several of the assembled dairy-state senators, including Democratic senator Tammy Baldwin of Wisconsin and Republican senator Mike Crapo of Idaho, cosponsors of the 2021 “Defending Against Imitations and Replacements of Yogurt, milk, and cheese to Promote Regular Intake of Dairy Everyday Act,” which would force the FDA to crack down on plant-based alternative companies that were labeling their products “milk.”’

More recently Justin Pearson, in a pointed opinion piece for the Washington Examiner, Pearson chastised this move by the FDA. He wrote (excerpts):

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The FDA knows it is unconstitutional to ban terms such as “coconut milk,” “almond milk,” and “oat milk.” But because large and powerful groups have asked for the ban, the FDA is planning to impose it anyway.

The FDA knows the ban would violate the First Amendment because of Mary Lou Wesselhoeft, a Florida dairy farmer who refused to inject anything artificial into her farm’s dairy products. She sold pasteurized whole milk and cream, along with the skim milk that was left over from skimming the cream.

But then came the international dairy conglomerates. They are making the exact same argument that the federal appellate court rejected — that because of differences in nutritional content, the government can ban plain language that reasonable consumers generally understand.

Yet despite knowing that the ban will violate the First Amendment, the FDA cannot bring itself to say no to the dairy industry’s powerful special interest groups. So, according to several reports, the FDA is moving ahead with its plans to ban these terms that people understand perfectly well.

Worse, this ban already technically exists, even if it has never been enforced. The FDA’s regulations already say that only cow’s milk can be called “milk.” Indeed, even goat milk does not qualify as “milk.” But because no reasonable consumer actually thinks that coconut milk comes from a cow, this regulation has never been enforced. Nonetheless, in the coming weeks, the Office of Management and Budget could give the green light to the FDA’s new draft guidance on enforcing this previously unused, ridiculous clause buried deep in the regulatory code.

Despite knowing these bans will be challenged in court and that the FDA will lose, regulatory officials seem bent on wasting millions of taxpayer dollars defending an unconstitutional law to satisfy corporate interests, rather than allow consumers simply to read the labels and make the choice that is right for them. When those powerful groups come calling, the FDA’s desire to do the right thing goes down the drain, just like Mary Lou’s pure skim milk once did.

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AUTHOR COMMENTARY

Just as I said with the French ruling on this issue, “big diary” is correct in their assertions about consumer confusion, which, granted, most people understand it’s not actually diary milk from an animal; but it is also very hypocritical of these vegan companies, because they are marketing it to be a replacement for actual milk, categorizing itself as such.

[1] Now the Spirit speaketh expressly, that in the latter times some shall depart from the faith, giving heed to seducing spirits, and doctrines of devils; [2] Speaking lies in hypocrisy; having their conscience seared with a hot iron; [3] Forbidding to marry, and commanding to abstain from meats, which God hath created to be received with thanksgiving of them which believe and know the truth.

1 Timothy 4:1-3

At the end of the day, I believe Pearson is correct in saying that this is only a formality and will be overturned in court, and it is just an excuse to waste even more money.

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[7] Who goeth a warfare any time at his own charges? who planteth a vineyard, and eateth not of the fruit thereof? or who feedeth a flock, and eateth not of the milk of the flock? [8] Say I these things as a man? or saith not the law the same also? [9] For it is written in the law of Moses, Thou shalt not muzzle the mouth of the ox that treadeth out the corn. Doth God take care for oxen? [10] Or saith he it altogether for our sakes? For our sakes, no doubt, this is written: that he that ploweth should plow in hope; and that he that thresheth in hope should be partaker of his hope. (1 Corinthians 9:7-10).

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