Milk Sounding: How to reconcile legal definitions and consumers’ perception of products with potentially misleading labels: towards the modernization of food standard of identity


lcmm@melchionnalaw.com
Milk Sounding: How to reconcile legal...

Since the 1930s, the Food and Drug Administration (“FDA”) has defined milk as “lacteal secretion [. . .] obtained by the complete milking of one or more healthy cows”. (21 CFR 133.3). Plant-based milks, however, enjoy no legal definition. Driven by robust consumer demand for dairy alternative products, sales of plant–based milks (like almond, cashew, soy or hazelnut milks) are expected to reach $20 billion by 2020 at the expense of real milk sales. In 2018 sales of actual milk plummeted by $ 1.1 billion (source Dairy Farmer of America 2018 http://www.dfamilk.com/newsroom/press-releases/dfa-reports-2018-financial-results).

Plant-based milk products supplanted actual milk with the use (and/or misuse) of the word “milk” and the addition of colorants. The FDA and judicial system avoided considering the merit of plant-based milk classification (or regulation) yet.

In Kelley v. WWF Operating Co, the plaintiff argued that plant-based beverages must be labeled “imitation milk because they are, in fact, nutritionally inferior to dairy milk”. (1:17-cv-117-LJO-BAM (E.D. Cal. 2017)), (Complaint, at 4). The Court held that this decision falls “squarely within the FDA’s authority, and will require the agency’s expertise in determining how to fashion labels so they adequately inform consumers. Id. at 7; see also Am. Meat Inst. v. U.S. Dep’t of Ag., (496 F. Supp. 64, 646 F.2d 125 (4th Cir. 1981)).

In Painter v. Blue Diamond Growers, Painter claimed that “Blue Diamond Growers mislabeled its almond beverages as ‘almond milk’ when” California should have required them to label their product “imitation milk”. (No. 17-55901 (9th Cir. December 20, 2018) at 2). The US Court of Appeals established that the District Court properly dismissed Painter’s claim because “the Federal Food, Drug and Cosmetic Act (FDCA), contains a broad preemption provision, which prohibits a state from ‘directly or indirectly establish[ing]’ food labeling requirements ‘not identical to’ federal requirements.” (Id. at 2).

In Ang v. Whitewave Foods Co., the plaintiffs claimed that “defendants misbranded the [planted-based beverages] by using names like ‘soymilk,’ ‘almond milk,’ and ‘coconut milk,’ since the [plant-based beverages] are plant-based, and the FDA defines ‘milk’ as a substance coming from lactating cows”. (Case No. 13-cv-1953, (N.D. Cal. Dec. 10, 2013) at 2). The Court held that “these names clearly convey the basic nature and content of the beverages, while clearly distinguishing them from milk that is derived from dairy cows. Moreover, it is simply implausible that a reasonable consumer would mistake a product like soymilk or almond milk with dairy milk from a cow.” (Id. at 9-10). Accordingly, the District Court rejected the plaintiffs’ claim.

In Ocheesee Creamery LLC v. Putnam, the US Court of Appeals focused on whether “in using the term ‘skim milk’ the [commercial] speech is inherently misleading or merely potentially misleading.” (No. 16-12049, at. 16, F. Suppl. (N.D. Fla. 2017)). The US Court of Appeals referred to another case in its opinion, stating that “commercial speech does not merit First Amendment protection and may be regulated or even banned if (1) the speech concerns unlawful activity or (2) the speech is false or inherently misleading.” (Id. at. 10; see also See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S. Ct. 2265, 2275 (1985)).  According to the holding, the plant-based commercial speech does not involve an unlawful activity, nor does it mislead consumers because use of the term “is merely a statement of objective fact. (Id. at. 19). Thus, the commercial use of “skim milk” was sustained.

In addition to these court decisions, the Food Drug and Cosmetic Act (FDCA) prohibits states from imposing food identity requirements that do not concur with the FDA’s. As a result, the FDA is the sole authority to decide on such matters: a court can review a decision, if one is taken, but cannot order the agency to issue a decision. Since the agency has not yet rendered a decision on labeling plant-based milks, the judicial system is limited in its authority to respond more thoroughly to these complaints.

The European legal system, on the other hand, has taken a different stance towards plant-based milk labeling. On July 14, 2017, the European Court of Justice (ECJ) in Verband Sozialer Wettbewerb eV (VSW) v. TofuTown.com GmbH (Case C-422/16) stated that TofuTown’s promotion of pure plant-based products infringes on EU competition rules. The ECJ stated that, according to Article 78(2) and Annex VII, Part III, points 1 and 2, of EU Regulation No. 1308/2013, which regulates the market for agricultural products, TofuTown was not allowed to use the word milk for its plant-based products.

US and ECJ courts have taken opposite stances on the matter: the first reasoned that reasonable consumers can understand what they are buying, while the second holds regulators to a higher standard. In light of this comparison, what is the role of the FDA? Should the FDA be forced to make a decision on labeling plant-based imitation products?

The FDA finally appears to be taking action that seems likely to result in a change in the near future. On July 26, 2018, the FDA announced a comprehensive, multiyear FDA Nutrition Innovation Strategy, which is expected to modernize food identity standards in order to: “(1) protect consumers against economic adulteration; (2) maintain the basic nature, essential characteristics, and nutritional integrity of food; and (3) promote industry innovation and provide flexibility to encourage manufacturers to produce more healthful foods”,(source: FDA https://www.fda.gov/food/workshops-meetings-webinars-food-and-dietary-supplements/public-meeting-horizontal-approaches-food-standards-identity-modernization-09272019-09272019). On September 27, 2019, FDA held a public meeting to begin this process. The deadline to submit written/electronic public comments is November 12, 2019.