Shook Attorneys Review “Regulatory Standoff” on Plant-Based Milks for Law360
As plant-based beverages appear on more store shelves, the
definition of “milk” has become the center of a dispute involving
legislatures, regulators, litigators and industry groups. Shook
Partners Katie Gates Calderon and Lindsey Heinz, with Associate
Elizabeth Fessler, explain the debate in “Dairy Vs. Plant-Based
‘Milks’: A Regulatory Standoff.”
While Canada and the EU have both ruled that plant-based
products cannot be called “milk,” the U.S. Food and Drug
Administration (FDA) has yet to take determinative action to
ensure that products using “milk” contain cow milk, though it
does define the term as “obtained by the milking of one or more
healthy cows.” Although FDA has warned plant-based beverage
manufacturers, the agency has not taken enforcement action
against such products and has never ruled on a 1997 petition to
allow the use of the term “soymilk.” Moreover, legislation has
been introduced in both houses of Congress (H.R. 778; S.130) that
would require FDA to enforce dairy food-labeling regulations, but
both bills remain in committee.
“In short, both manufacturers and counsel advising them are left
without a clear answer regarding the proper labeling of plant-based
milk products,” Gates Calderon, Heinz and Fessler explain.
“As often happens when a regulatory gray area exists, consumers
in California have taken to the courts.” In a summary of recent
litigation, the authors conclude that courts have tended to allow
plant-based beverages to use the term “milk,” finding that
“qualifiers” such as soy, almond or coconut limit potential
consumer confusion.
“With plant-based products continuing to use ‘milk’ without
pushback from the FDA, many companies are likely to continue to
use the term to describe milk alternatives. Moreover, the longer
terms like soymilk, almond milk and coconut milk remain in use,
the stronger the argument those terms are the common and usual
name of the products as established by common use,” the authors
write. “While the term ‘milk’ will almost certainly be subject to
additional legislative and judicial scrutiny, true clarification will
require the FDA to either amend its regulatory framework or
utilize its enforcement powers to limit the use of ‘milk’ on plant-based
product labels.”
Additional details about the dispute over plant-based products
appear in Issues 607, 638 and 643 of this Update.
Issue 645
