The National Milk Producers Federation (NMPF) yesterday submitted a citizen petition to FDA related to the use of dairy terms such as “milk,” “yogurt,” “cheese,” “ice cream” and “butter” in the statements of identity for non-dairy plant-based substitutes. The petition argues that the use of these standardized dairy terms to name non-dairy foods falls short of FDA requirements, “falsely implies that the non-dairy substitutes are equivalent to and interchangeable with standardized dairy foods,” and “fails to disclose the material facts concerning how these non-dairy substitutes differ from standardized dairy foods or adequately distinguish non-dairy substitutes derived from different plant sources.”

The NMPF petition asks that the Agency: (1) take enforcement action against misbranded non-dairy foods that substitute for and resemble reference standardized dairy food(s) but are nutritionally inferior to the reference food and include the name of the reference food in the statement of identity; and (2) amend section 101.3(e) of FDA regulations to codify policies that permit use of standardized dairy terms for non-dairy substitutes that resemble and substitute for the same reference dairy food only under defined conditions. The latter proposal to amend section 101.3(e) would be limited in the following notable ways:

  • The proposal applies only to “non-dairy foods that substitute for and resemble standardized dairy foods,” which are defined as foods that contain no single dairy ingredient or combination of dairy ingredients in amounts that are sufficient to constitute major ingredients and that substitute for and resemble a food that is a standardized dairy food (e.g., “milk,” “yogurt,” “cheese,” “ice cream” and “butter”).
  • The proposal applies distinct requirements depending on whether the non-dairy substitute food is nutritionally inferior or nutritionally equivalent to the reference standardized dairy food:
    • For nutritionally inferior non-dairy substitute foods, the statement of identity could identify a reference standardized dairy food, provided that either: (1) the name of the food were qualified through use of the legally defined term, “imitation”; or (2) the name of the food were qualified through use of the term “substitute” or “alternative” and material differences including nutritional inferiority and performance limitations were disclosed.
    • For nutritionally equivalent non-dairy substitute foods, the statement of identity could identify a reference standardized dairy food, provided that the name of the food were qualified through use of the term “substitute” or “alternative” and material differences, including performance limitations, were disclosed.
  • The proposal would not apply to non-dairy foods that do not: (1) substitute for and resemble a standardized dairy food; and (2) reference the standardized dairy food substituted for and resembled as part of its statement of identity (i.e., would apply to “oat milk, “ but not “oat beverage”).

The Statement of Grounds in the NMPF petition argues that the enforcement and regulatory actions the petition asks FDA to undertake are amply justified on statutory, regulatory and First Amendment grounds, and advance FDA’s consumer protection and public health policy objectives.

The NMPF petition was filed in the wake of the agency’s recent request for public comment on related issues, which resulted in more than 13,000 comments being filed in the FDA docket.