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Simplifying Food Regulation

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FDA Reader: Simplifying Food Regulation

Why is the FDA Picking a Fight with Plant-Milk?

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The only thing harder than developing and selling an innovative food product is figuring out a legal name for it. The FDA has long sought to protect consumers from imitation products and false advertising by implementing Standards of Identity which define parameters for what we can call certain types of foods. 

These protections ensure that our milk is not diluted with cheap fillers and that a package of imitation crab clearly describes what is doing the imitating. The FDA’s stated goal is for a consumer to glance at a product on a shelf and know exactly what they’re buying. 

But when it comes to innovative products, things get tricky. If you pulled everything off the shelf labeled “milk” in your local supermarket, you’d likely end up with equal parts rice, almond, oats, and soy extracts as true dairy milk. The dairy lobby is not happy about this.

Is it clear that oat milk did not come from a cow? Most likely, yes. The plant-based-milk industry is adamant about this and is quick to remind us of the absurd image in which a dairy worker milks a lactating almond. Nothing is unclear about plant-based-milks, they contend. In a 2013 ruling supporting the alt-milk industry, Judge Samuel Conti expressed that the hypothetical consumer confused by the terms “almond milk” and “soymilk” also probably thinks ebooks are made of paper. According to his decision, the notion that this consumer exists “stretches the bounds of credulity.

On the other hand, is it possible that consumers of oat milk assume it has similar nutritional properties as dairy milk? Yes. At least I assumed so, until now. 

This is the crux of the FDA’s argument for why oat milk is a misleading product name — that a mother would substitute her child’s dairy milk with a “milk” product that, unbeknownst to her,  has a substantially diminished nutritional profile. As a result, her child could come become under-nourished and at risk for chronic disease —  which the FDA was specifically created to eradicate.

Continuing with the agency’s reasoning, this wouldn’t have happened if the product weren’t labeled as milk. An “Oat Non-Dairy Beverage” has no presumed nutritional profile, and this is why it’s a safer name to put on the label.

As it turns out oat milk has substantially less protein, calcium and iron than dairy milk, although oat milk producers often fortify their products with vitamins and minerals to make them more nutritionally robust.

Stroll down a supermarket aisle and you’ll notice the risk-averse brands who opt for more conservative, descriptive names for their products. They’ll do anything they can to offset the clunkiness of these monikers, from maximizing the word “Oat” to the largest legally allowable size to cluttering the panel with reminders that it is Certified Organic and Gluten-Free.

Some companies have shrewdly labeled their products as “soymik” or “almondmilk”, (spelled deliberately as a single word) and argue that this frees them from various provisions governing “milk” products. And the plant-based milk industry is fighting back on multiple fronts. The Good Food Initiative highlights the labeling restrictions as a constitutional violation of free speech and sees the FDA as perpetuating consumer confusion by “picking winners”. 

It’s true that powerful food lobbies have continually sought to manipulate the FDA to boost sales and deter new entrants to the market — in 2018 fourteen senators voted to prohibit the FDA from studying the use of the term “milk”. And as the controversy about plant-based milks transforms into one about food product marketing, the FDA regulation is ill-equipped to provide consistent answers.

The conflict between plant-based-milks and the FDA is premised on the fact that plant-milks don’t fit the Standard of Identity for “milk”. But the Standards of Identity were written to prevent food manufacturers from trickery on the production line, not to police food naming conventions. It’s no surprise that innovative products foods are so hard to name.

Why Is Oat Milk Everywhere?

The widespread presence of oat milk on supermarket shelves is hardly an indicator of the FDA’s stance on the product’s legality. The agency takes a notoriously reactive stance and will often observe regulation-defying-products for months or years before intervening (e.g. CBD, which is plainly illegal as a food ingredient yet seemingly everywhere as a food ingredient).

According to commissioner Scott Gottlieb, the FDA is working to overhaul the standard of identities for product categories — such as milk and cheese—  whose names have been adopted by innovative plant-based foods. This seems prudent and long overdue, but in the mean time, are plant-based milks really worth going after? 

Perhaps. These regulatory outcomes will set a precedent for an impending food category that expects to be even tougher to regulate and more disruptive than plant-based milks: meat-alternatives. Although “clean meats” such as Impossible and Beyond Burger currently make up less than <1% of domestic meat sales, they are gaining traction in the $90 billion dollar global meat industry. Both the USDA and FDA face an onslaught of regulation-defying food products that are perfectly safe to eat but just don’t fit the framework. Who would have guessed that the hardest part of creating vegan bacon would be deciding what to call it?