FDA Commissioner Scott Gottlieb released a statement last week saying the Agency plans to review dairy labeling norms, specifically the use of terms like milk, yogurt, and cheese in reference to plant-based milk and other dairy-free products.
The bipartisan DAIRY PRIDE Act attempted to regulate the use of these words in reference to plant-based milk and dairy last year, but Gottlieb only recently addressed the issue, noting at the Politico Pro Summit earlier this month that “an almond doesn’t lactate.”
“As a general matter, statutes and regulations are not unconstitutional simply because they are unnecessary, stupid, or even counter-productive.”
Legal analysis from Verdict, however, notes that a crackdown on plant-based dairy labels may, in fact, be in breach of the First Amendment.
“As a general matter, statutes and regulations are not unconstitutional simply because they are unnecessary, stupid, or even counter-productive,” reads the analysis, which compares this issue to a trademark case last year. In Matal v. Tam, the Patent and Trademark Office's refusal to trademark a band called “The Slants” on the basis of discrimination was rejected.
“Running throughout all of the opinions was a profound skepticism about the government making ideological judgments in the grant or denial of rights to exclusive use of a word,” explains the outlet, noting that the same reasoning could be applied to this issue.
The FDA’s position on plant-based milk and dairy labeling purportedly comes from a health standpoint. The FDA claims that the difference in nutritional content of the two products warrants a labeling distinction.
“Because these dairy alternative products are often popularly referred to as 'milk,' we intend to look at whether parents may erroneously assume that plant-based beverages’ nutritional contents are similar to those of cow’s milk, despite the fact that some of these products contain only a fraction of the protein or other nutrients found in cow’s milk,” Gottlieb says.
The dairy industry has expressed its support of the FDA's statement.
“We are pleased to see that the FDA has finally recognized the need to increase its scrutiny of plant-based products imitating standardized dairy foods,” Jim Mulhern, president and CEO of the National Milk Producers Federation, tells Farm Journal. “We are further encouraged by FDA’s recognition that standards of identity also verify that a food must possess a ‘basic nature’ and measure of expectation to earn the use of the standardized name.”
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