“Milk” Comes from Breasts/Udders

According to the Wall Street Journal: “Organic milk sales have cooled as the very shoppers who drove demand for the specialty product not long ago move on to newer alternatives, leaving dairy sellers and producers grappling with oversupply….Now, organic-milk supplies have ballooned just as demand has stalled.  Many shoppers have moved on to substitutes such as almond ‘milk,’ which contain no dairy.”

That is sure ironic.  Organic milk was a fad based on the belief that organic milk was healthier, which it is not.  The difference between regular milk and organic milk is (among other things) how many days the cows are left to roam in the pasture.  Now, the consumers of organic milk are switching to almond milk (or cashew milk or rice milk), which contains absolutely no milk at all.  Almond milk is ground up almonds mixed with water—it is not milk with almond extract.

Let’s look at this more closely. 

“Milk” is a food name that legally is subject to a standard of identity (“SOI”), promulgated by our Food and Drug Administration (“FDA”) pursuant to authority vested in it by Congress through enactment of section 401 of the Federal Food, Drug, and Cosmetic Act (“FD&C Act”).  The SOI provides (in pertinent part): “Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”  21 C.F.R. § 131.110(a) (emphasis added).  Nutritional and compositional differences from such standard milk may be highlighted in food names under other FDA regulations.  E.g., 21 C.F.R. §§ 101.65(b)(1) (“lactose free milk”), 130.10 (“reduced fat milk”).  Other products with food names that include the word “milk” (e.g., acidified milk, cultured milk, concentrated milk, sweetened condensed milk, nonfat dry milk, and evaporated milk) also are within FDA’s SOI regulations, and each “milk” derives from healthy cows.  21 C.F.R. §§ 131.111–131.147.  FDA’s regulations also countenance goat’s milk, sheep’s milk, and water buffalo’s milk.  E.g., 21 C.F.R. §§ 133.155(b)(1), 133.183(a), and 135.115.

The point is that each of these “milk” food names is legally established/recognized and refers to a lacteal secretion derived from mammals—not from plants. In contrast, “almond milk” (and “cashew milk” and “rice milk”) has no such legal/regulatory basis.  So, contrary to being consistent with federal law, a “[plant-derived] milk” food name violates it. 

FD&C Act403(a)(1) provides: “A food shall be deemed to be misbranded…[i]f…its labeling is false or misleading in any particular….”  In conjunction, FD&C Act § 201(n) provides:

If an article is alleged to be misbranded because the labeling…is misleading, then in determining whether the labeling…is misleading there shall be taken into account…not only representations made or suggested…but also the extent to which the labeling…fails to reveal facts material in the light of such representations…under such conditions of use as are customary or usual.

“Almond milk” reportedly is misunderstood by consumers to name almond-flavored milk (akin to “chocolate milk”).  This certainly is false or misleading – not only for the explicit “milk” implication, but also because the labeling of plant-based alternatives as “milk” conveys a nutritional equivalency that is not accurate.  See 21 C.F.R. § 101.3(e) (“imitation” labeling).   

Similarly violated by these food names is the Federal Trade Commission [“FTC”] Act.   Section 5 of the FTC Act prohibits “unfair or deceptive acts or practices in or affecting commerce.  15 U.S.C.  § 45(a)(1).  Section 12 expressly proscribes any false advertisement likely to induce the purchase of food, and declares such false advertising to be within the scope of section 5’s prohibition of “deceptive acts or practices.”  15 U.S.C.  § 52.  The term “false advertisement” for purposes of section 12 is defined in section 15 as one that is “misleading in a material respect.”   15 U.S.C.  § 55(a)(1).

Thus, false or misleading “[plant-derived] milk” food names, like “almond milk” (and “cashew milk” and “rice milk”), are unlawful in both food labeling and advertising.

In concert with the FDA and FTC, the Agricultural Marketing Service (“AMS”) within the U.S. Department of Agriculture (“USDA”) exercises oversight of promoting various agricultural commodities, including milk.  Milk marketing orders are a binding regulation for the entire industry in the specified geographical area; they help assure dairy farmers a reasonable minimum price for their milk throughout the year, and ensure that consumers have an adequate supply of milk throughout the year without wild fluctuations in price during heavy and light milk production.  The Fluid Milk Promotion Program, created and administered under the Fluid Milk Promotion Act of 1990, develops and finances a generic advertising program designed to maintain and expand markets and uses for fluid milk products produced in the U.S.  Plant-derived beverages named “____ milk” reasonably interfere with USDA-AMS promotional efforts.   

These “milk” claims warrant correction. 

Senator Tammy Baldwin (D-WI) has introduced S.130, the “DAIRY PRIDE” Act.  The bill would protect the integrity of dairy products by amending the FD&C Act § 403 misbranding provisions.  It would require that non-dairy products made from nuts, seeds, plants, and algae no longer be confusingly labeled with dairy terms like “milk,” ”yogurt,” and “cheese.”

“Almond milk” (like “cashew milk” and “rice milk”) is not a dairy product; such food names mislead the public and should not be permitted in U.S. commerce.  Doing so only undermines confidence in the integrity of food labels for all foods.  Brad Nevin, a dairy farmer in Rice Lake, WI, captured the feeling very well when he said: “While imitation may be the sincerest form of flattery, the increasingly common practice of labeling beverages as milk when they quite obviously are not is wrong and misleading.” The companion House bill, H.R. 778, was introduced by Reps. Peter Welch (D-VT), Sean Duffy (R-WI), Mike Simpson (R-ID), Joe Courtney (D-CT), David Valadao (R-CA) and Suzan DelBene (D-WA).

These “imitation milk” food names simply do not pass the commonsense test.  For as long as humanity has existed, we have understood that milk comes from the breasts/udders of humans and other mammals. (Even the creatures in The Last Jedi provided milk to Luke Skywalker from prominent udders.)  The Congress should pass the “DAIRY PRIDE” Act, and the FDA, FTC, and USDA-AMS should enforce/administer current laws properly to prevent consumer confusion and misleading advertising.

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