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

FDA has historically posited that the standard of identity for “milk” only applies to the use of the unqualified term. As such, if a producer of almond milk simply labeled their product as “milk,” it would be mislabeled. Indeed, when the regulation establishing the identity standard for “milk,” was promulgated, FDA stated the standard would not preclude the use of the term “milk” for qualified products like chocolate milk. By way of comparison, there are other similarly situated foods, such as corn bread and rice noodles, which are not bread or noodles in the traditional sense. According to GFI, it’s equally clear that almond milk and other plant-based milks do not purport to be “milk.”

For several years, FDA has been reviewing whether these terms are likely to mislead or confuse consumers. In a July 2018 statement, Scott Gottlieb, MD, then-FDA Commissioner, stated that, “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.” It is unclear at this point what that review has found or whether it remains ongoing.

Case Law

The cases that have been decided to date have been largely unfavorable to opponents of plant-based dairy alternatives.

In Gitson v. Trader Joe’s Co., the plaintiffs sued to enjoin the sale of soy milk, arguing they were misled to believe that organic soy milk complied with FDA’s standard of identity for milk and that organic soy milk provided quality, taste, and nutritional benefits comparable to cow’s milk.

The court disagreed with the plaintiffs and held that the standard of identity regulation “simply means that a company cannot pass off a product as ‘milk’ if it does not meet the regulatory definition of milk.” The court assested that it was implausible to believe that a reasonable consumer would believe soy milk is cow’s milk and has the same qualities as cow’s milk. In granting the extraordinary relief of dismissing the case, the court reasoned that Gitson was “one of those rare cases where the accused label itself makes it impossible for the plaintiff to prove that a reasonable consumer is likely to be deceived.”

Ang v. Whitewave Food Co. resulted in a similar outcome. In this case, the plaintiffs alleged that the defendants had misbranded Silk products by using names like “soymilk,” “almond milk,” and “coconut milk,” since the Silk products are plant-based, and FDA defines “milk” as a substance coming from lactating cows (the “milk claims”). The court forcefully rejected the plaintiffs’ argument. In its decision, the court asserted that the names “soymilk,” “almond milk,” and “coconut milk” accurately describe Defendants’ products.

Further, the court noted that the name “almond milk” clearly conveyed the basic nature and content of the beverages, while simultaneously distinguishing them from cow’s milk. “Moreover, it is simply implausible that a reasonable consumer would mistake a product like soymilk or almond milk with dairy milk from a cow. The first words in the products’ names should be obvious enough to even the least discerning of consumers,” the court concluded. Of particular import, the court reasoned that adopting the plaintiffs’ position could increase confusion, “especially with respect to other non-dairy alternatives such as goat milk or sheep milk.”

The court went so far as to compare the plaintiffs’ claims in Ang to those in another case, Werbel ex rel. v. Pepsico, Inc. In Werbel, in which the plaintiff claimed to have believed “Cap’n Crunch’s Crunch Berry” cereal derived its nutrition from actual fruit because of its label’s reference to berries and because the “crunch berries” resembled real berries. The court derided the allegations as “nonsense,” observing that the word “berries” was always preceded by the word “crunch” and that the crunch berries depicted on the label did not remotely resemble any naturally occurring fruit.