FDA still pouring over terminology decision

Jarndyce v. Jarndyce

We’re all familiar, by this point, with products such as soymilk and almond milk – beverages that are often placed in the grocery store next to conventional dairy products. But consumers might be surprised to learn that the peaceful coexistence of the products is a mere front for an intermittent, seemingly interminable legal battle worthy of a Dickens novel.

The fight over whether plant-based products can be labeled as “milk” has been continuing on and off for 20 years. Two decades ago, the Soyfoods Association petitioned the Food and Drug Administration (FDA) for a common or usual name regulation to recognize the term “soymilk” as the proper terminology for “the liquid food that is obtained as a result of combining aqueous-extracted whole soybean solids and water.”

The National Milk Producers Federation (NMPF) fired back with a letter to the FDA, claiming that the law prohibited the use of the word milk when labeling products that were not derived from cows, and asked the FDA to enforce their interpretation. The Soyfoods Association responded in turn, arguing that the NMPF’s interpretation was correct but narrowly applied: If the term milk was qualified with the source from which the product was derived – soymilk, for example – the law remained unviolated.

The association also noted that their original petition remained unanswered after three years. Little did they know.

20 Years Later …

Today, the battle remains unresolved. In a recent letter issued by the FDA in response to a March 2017 petition by the Good Food Institute, the administration wrote that it was “not able to reach a decision on [the] petition…because of other agency competing priorities.” The letter went on to promise review and consideration of regulatory changes “as warranted and in the context of other program priorities within the Center.”

In the interim between the institute’s petition and the original Soyfoods Association letter from 1997, there had been a number of efforts by participants on either side of the debate to advance their cause, culminating in the “Dairy Pride Act,” legislation introduced by Sen. Tammy Baldwin of Wisconsin in January that would require nondairy products to no longer be labeled with dairy terms such as milk and “cheese.” The bill has been sent to Committee.

The Takeaway

The Good Food Institute’s petition proposes an amendment to the regulatory regime allowing qualifying words to be added to a food name to specify its source, usage the institute argues is widely understood and accepted by consumers.

The institute also provides an in-depth legal argument, holding that its proposed change is consistent with the FDCA’s and the FDA’s policy and practices, and that restrictions on commercial speech would be brought under heightened judicial scrutiny that they would not be likely to withstand.