Bonus: NAD skirts against self-imposed limits on mandated nutrition claims

Undiscovered Country

Oat milk and its cousins (soy milk, almond milk and so on) are relatively late entrants to the American refrigerator, but they’re making a big splash. As we mentioned in an earlier column, alt-milks are a burgeoning industry, worth $1.6 billion by one recent measure and gobbling up 15% of the milk market.

All of this novelty generates dispute and conflict, of course; the FDA has been hemming and hawing over the terminological guidelines regarding plant-based milks for decades now, and recent litigation reflects the novelty of legal distinctions regarding plant-milk ingredients, additives and health claims. More litigation is sure to come.

So, without further ado, here’s the latest dispatch from the milk wars.

Sugar (Bum) Rush

It’s a case that sits smack in the middle of a Venn diagram of three gray areas ‒ the surprisingly blurry territory between advertising and government-mandated disclosure, the intersection of disputes over what makes milk, and the murky no-man’s land of “added sugar” regulation.

Campbell Soup Company, which owns Pacific Foods of Oregon (“plant-based beverages, soup, broth, bone broth”), brought a dispute against Oatly Inc. before the National Advertising Division regarding claims Oatly was making about the sugar content of its products.

Oatly was doing some bragging, for sure. The packaging claims in question included “No added sugar(s),” “We don’t add sugar (We thought it was worth repeating),” “Includes 0g Added Sugars” and “Sugar-Free.”

The beef about the oats? These claims were misleading, Campbell claimed, because the process that turns oats into oat milk creates sugars as the oats are torn down into smaller chunks. Oatly countered that it was only following orders ‒ nascent regulations from the Food and Drug Administration issued in May 2018, no less, whose added sugars rules go into effect next year.

The Takeaway

NAD countered that it “did not conclude that claims about added sugars are ‘mandated or expressly approved by federal law or regulation’ such that NAD would be deprived of jurisdiction,” because of abiding uncertainty regarding the definition of what added sugars were.

Nonetheless the Nutrition Facts Panel itself, on which the tag lines were built, “is not advertising as defined by ASRC Procedures, and is therefore outside the scope of NAD review.”

So, where did NAD come down? You must admire the way NAD picked its way through this dispute:

“When the advertiser chooses to use the Nutrition Facts Panel as advertising [our emphasis], the consumer takeaway from the claims about ‘added sugars’ must be considered.” Freed from taking a position on whether Oatly’s nutrition info was up to FDA snuff, NAD recommended that “Oatly not re-post or restate the ‘added sugars’ line of the Nutrition Facts Panel in its advertising …” Since Oatly claimed it had already abandoned the “no added sugar” tags, NAD did not rule on the merits of the claim.

Marketing types, take note: Quoting mandated nutrition facts doesn’t spare you standard advertising scrutiny.