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A plaintiff has filed a putative class action alleging Tillamook County Creamery Association misleadingly markets its products as sourced from cows in Tillamook County. Bohr v. Tillamook Cty. Creamery Ass'n, No. 19-36208 (Ore. Cir. Ct., Multnomah Cty., filed August 19, 2019). The complaint alleges that consumers "increasingly seek out and are willing to pay more for products that they perceive as being locally and ethically sourced—better for the environment, more humane." Tillamook allegedly sought to capitalize on this consumer preference by advertising its products as "made with four ingredients, patience, and old-fashioned farmer values in Tillamook, Oregon," despite producing its cheese and ice cream with ingredients obtained from "the largest and most industrialized dairy factory farm in the country," a "complex of cement-floored production facilities and barren dirt feedlots, where cows are continuously confined, milked by robotic carousels, and afflicted with painful udder infections." The complaint cites a "recent consumer…

The National Milk Producers Federation (NMPF) has submitted a citizen petition urging the U.S. Food and Drug Administration (FDA) to "[e]nforce existing 'imitation' labeling requirements against nutritionally inferior non-dairy substitutes for standardized dairy foods that are named and positioned as forms of 'milk,' 'yogurt,' 'cheese,' 'ice cream,' or 'butter,' yet fail to provide the 'imitation' disclosure statement that is required." The petition's introductory letter argues that its recommended actions "are necessary to ensure that consumers are adequately informed concerning the material differences between standardized dairy foods (e.g., milk, yogurt, cheese, ice cream, butter) and the wide variety of non-dairy substitutes that are available in the marketplace which are identified through the misappropriation of terms that have been defined by standards of identity to identify standardized foods that meet specified compositional, nutritional, or functional requirements." The debate over dairy and non-dairy substitute labeling extends to Canada, where a creamery has reportedly…

A group of members of Congress, led by Reps. John Joyce (R-Pa.) and Anthony Brindisi (D-N.Y.), have urged the U.S. Food and Drug Administration (FDA) to enforce "regulations defining what may be labeled a dairy product, to combat the proliferation of imitation and substitute dairy products in the marketplace that undermine FDA regulations by using standardized dairy terms on non-dairy products." "Dairy product terms convey specific information for consumers on nutritional content and ingredient performance. Put simply, imitations and substitutes do not meet these standards, nor do they have any standardized requirements for nutritional content, composition, and processing, unlike the dairy products they seek to imitate. Most importantly, they are not sourced from cows or other lactating mammals as required by the standards we referred to up above," the letter asserts. "Giving this ongoing problem, we are pleased that FDA now plans to act. We urge you to make crystal…

The National Advertising Division (NAD) has referred The a2 Milk Company's claims that its products are "easier on digestion" to the U.S. Federal Trade Commission (FTC). The National Milk Producers Federation challenged the milk marketing, asserting "errors in study design, methodology, and population selection" as well as arguing that the results of the company's study are "clinically insignificant." The a2 Milk Company responded that the organization "selectively presents incomplete and outdated research and observations made without the benefit of recent research" but declined to participate further in the system of self-regulation.

A survey of 1,000 participants conducted by the International Food Information Council Foundation has purportedly found that between 24 and 28 percent of respondents either believed or did not know whether plant-based milks contained cow's milk. The organization reported that between seven and nine percent of respondents identified rice, cashew, almond, soy and coconut milk as containing cow's milk, while between 16 and 20 percent of respondents answered that they did not know whether the products contains cow's milk. The survey also asked about the participants' understanding of almond butter and peanut butter; eight percent answered that they believed almond butter contains cow's milk, while 15 percent believed that peanut butter contains the ingredient.

The U.S. Food and Drug Administration (FDA) has solicited public input on questions related to plant-based substitutes for dairy products such as almond or soy milk. The agency's request for information (RFI) seeks responses on three points: "How do you use plant-based products?" "What is your understanding of dairy terms like milk, yogurt and cheese when they are used to label plant-based products?" "Do you understand the nutritional characteristics of plant-based products? Do you know how they’re different from each other? Do you know how their nutritional qualities compare with dairy products?" "The RFI opened today is an important step in our efforts to take a look at how we have been applying the Food Drug and Cosmetic Act with respect to food names and our existing standards of identity," FDA Commissioner Scott Gottlieb said in a statement. "The comments we receive will help inform the development of draft guidance…

The California legislature has passed a bill that would require retail food facilities to make the default beverages sold with children's meals "water, sparkling water or flavored water, as specified, or unflavored milk or a nondairy milk alternative, as specified." Flavored waters may not contain "added natural or artificial sweeteners," while nondairy milk alternatives must contain fewer than 130 calories. In addition, a restaurant's menu and advertisements must display the default beverages. The bill would "not prohibit a restaurant’s ability to sell, or a customer’s ability to purchase, an alternative beverage instead of the default beverage offered with the children’s meal, if requested by the purchaser of the children’s meal." The bill has been presented to Governor Jerry Brown for approval.

In a forthcoming Brooklyn Law Review article, professors from George Washington University Law School and Lund University argue that one solution to the definition dispute between cow's milk and plant-based milk producers may be to label plant-based milks as "mylk." Gambert et al., "Got Mylk? The Disruptive Possibilities of Plant Milk," Brooklyn L. Rev., forthcoming 2019. The professors assert that plant-based milk producers should embrace a new word, such as the "whimsical" and "creative" "mylk," to avoid negative associations with "milk with an 'i,'" including "exploitation and oppression – of women, people of color, and nonhuman animals." "At the end of the day, the 'milk wars' on both sides of the Atlantic serve as a barometer of plant milk’s role as a disruptive force in the millennia-long relationship between humans and milk. By replacing the 'i' with a 'y,' plant milk – or mylk – advocates can signal to the…

Massachusetts Governor Charlie Baker has vetoed a state environmental bond bill containing a provision that would allow raw milk sales at farm stands and via home delivery, citing a need for stricter regulation of raw milk. “Consumption of unpasteurized milk can result in foodborne illness and possible death due to bacterial infections, especially among infants, children, pregnant women, immunosuppressed patients, and the elderly,” Baker’s veto states. “The risk of foodborne illness due to consumption of raw milk increases with the number of people handling the raw milk prior to consumption, and the length of time between production and consumption. As such, it is important that any expansion of the sale of raw milk in the Commonwealth be done in such a way that it protects those who choose to consume it.” The veto includes suggested updates that would tighten restrictions on raw milk, including the establishment of licenses maintained by…

At a speaking engagement, U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb reportedly expressed that the agency’s standards of identity for milk have not been enforced. According to the standard of identity, milk is “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows,” a definition that does not include non-dairy beverages produced from almonds, soy, rice or coconuts that are labeled as milk. Admitting that “an almond doesn’t lactate,” Gottlieb reportedly indicated that FDA will begin collecting public comments before determining its approach to the issue.

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