Courts, Legislators Debate Over Which Types of Products May Be Called ‘Milk’

Attempts to legislatively constrain the English language are rarely successful. There are many reasons for this, both legal and practical. Yet, the appetite for such efforts, especially in the food industry, seems to be all but insatiable. This article explores ongoing attempts to constrain the use of the term “milk,” and the legal battles being waged in furtherance of that pursuit.

The online Merriam Webster dictionary offers several definitions of “milk.” The first is “an opaque white fluid rich in fat and protein, secreted by female mammals for the nourishment of their young.” Another is to exploit or defraud someone. FDA’s standard of identity for milk provides that “nilk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” The FDA’s standard of identity of course excludes the milk from goats and other mammals. One final definition from Merriam Webster is “a liquid resembling milk in appearance, such as the latex of a plant or the contents of an unripe kernel of grain.”

In recent years, significant acrimony has arisen over which types of products may be called “milk.” Throughout the country, laws are being enacted and battles are being waged—both in the court of public opinion and the actual courts—over what types of products may be called milk. The increasing popularity of plant-based milk alternatives is largely attributable to shifting views about the health benefits of cow’s milk and the moral implications of animal agriculture, which include concerns about animal welfare, environmental impacts, and perceptions about the nutritional value of plant-based products.

In response to the explosive growth of plant-based dairy alternatives, i.e., almond milk and oat milk, the dairy industry has vociferously argued that using the term “milk” in the names of these products should be prohibited. According to the National Milk Producers Federation, “Dairy farmers take great pride in their high-quality, nutritious dairy products and have spent many decades building consumer confidence in them. Imitations should not be allowed to unfairly capitalize on these associations, especially in ways that encourage inadequate nutrition and consumer confusion.” The organization further advocates for efforts to end the “continued proliferation and marketing of mislabeled non-dairy substitutes for standardized dairy foods misrepresented as ‘milk,’ ‘cheese,’ ‘butter,’ ‘yogurt,’ ‘ice cream,’ or other dairy foods.”

Conversely, the Good Food Institute (GFI), an organization that advocates on behalf of plant-based products, contends that consumers are not fooled by plant-based dairy alternatives. The GFI asserts itself as a proponent of protecting plant-based companies’ first amendment rights to label their products using words that consumers understand. Echoing recent court holdings, GFI argues that no reasonable consumers are misled by the term “almond milk,” which any consumer instantly understands is not cow’s milk.

Legislation and Regulation

Politically, the campaign for and against plant-based dairy alternatives has been bipartisan. In April 2021, U.S. Senator Tammy Baldwin (D-Wisc.), who is the chair of the Senate Agriculture Appropriations Subcommittee, and U.S. Senator Jim Risch (R-Idaho) reintroduced the Dairy Pride Act, a piece of federal legislation that seeks to force FDA to take punitive measures against food producers that use dairy terms, such as “milk,” “cheese,” and “yogurt,” to describe plant-based dairy alternatives. The act previously stalled in the legislature, and it is unclear whether it will pass this time around.

From a regulatory standpoint, the debate hinges on whether these products are misleading or misbranded. The Food, Drug, and Cosmetic Act (FDCA) prohibits the introduction or delivery into interstate commerce of any misbranded foods. A food is misbranded if it violates any of the voluminous and arguably arcane labeling regulations intended to prevent manufacturers from misleading consumers about the make-up or nutritional value of foods. Under these regulations, a food is misbranded “if it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations.”