retail news in context, analysis with attitude

by Kate McMahon

“An almond doesn’t lactate, I will confess,” Dr. Scott Gottlieb, commissioner of the US Food and Drug Administration (FDA), at a July Politico conference.

And there we have it, folks, the great “what defines milk” debate in a nutshell.

For years, the nation’s dairy producers have been at odds with makers of plant-based beverages over the definition of milk. That feud has only escalated as soy, almond, coconut and oat “beverages” continue to siphon market share from the traditional dairy drinks.

In fact, the market-research firm Mintel reported that non-dairy milk sales in the U.S. have increased 61% during the past five years, and the category was estimated to hit $2.11 billion in 2017. Overall sales in the dairy milk category have fallen 15% since 2012, reaching an estimated $16.12 billion in 2017.

Currently, the FDA defines milk as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” (Yuck!) Hence, that almond beverage can’t be called milk. Ditto any plant-based drink or even the “lacteal secretion” from a goat or a sheep. Go figure.

Under pressure from the dairy lobby to crack down on the use of the word milk, the FDA recently announced the agency was on a "fast track to take a fresh look" at how non-dairy substitutes are being used in the marketplace.

In a September 28th filing in the Federal Register, the FDA said it was seeking “insight into how consumers use plant-based alternatives and how they understand terms like ‘milk’ or ‘cheese’ when used to label products made, for example, from soy, peas or nuts.”

The public has until November 27th to file a written or online comment.

In a statement, Gottlieb he was concerned that consumers might mistakenly assume that non-dairy alternatives labeled “milk” would have the same health and nutrition benefits associated with cow’s milk, making them a “dairy product in disguise. “

In an interview with CNBC, Gottlieb also called it a “commercial speech issue,” and he did concede that the second definition of milk in the dictionary is a “substance derived from a nut.”

Of course, this definition battle extends beyond milk and plant-based yogurts and cheese. There has been linguistic wrangling, threatened and actual litigation and in some cases FDA warnings about eggless-mayonnaise, cauliflower and broccoli “rice” and “plant-based” beef.

Honestly, I don’t think the aforementioned labels put the American consumer at a nutritional disadvantage. I know that chopped cauliflower isn’t rice, Beyond Meat’s plant-based burger is exactly that, and the quart of Almond Breeze in my fridge did not come from a cow. It’s obvious.

The more important issue is clear and transparent labeling on all products regulated by the FDA. I would agree with the California Federal District Court Judge Vince Chhabria, who tossed out a 2015 lawsuit claiming Trader Joe’s soy milk label was misleading. He noted the product never tried to pass itself off as milk, and said “any reasonable consumer, indeed even an unsophisticated consumer” would not assume two distinct products would have the same nutritional content. And that’s what nutritional labels are for.

It seems to me the dairy lobby is just crying over spilt milk.

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