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FreedomWorks Foundation Submits Comments on Dairy Alternative Labeling

FreedomWorks Foundation's Regulatory Action Center (RAC) submitted formal written comments to the Food and Drug Administration (FDA) to oppose their proposed rule concerning the labeling of dairy alternatives. This rule would be an infringement on the First Amendment rights of businesses across America by essentially banning the use of phrases such as "almond milk" in commercial use. The full text of our comments can be found below or in the attachment at the bottom of the piece:

FreedomWorks Foundation strongly opposes any attempt to limit the ability of companies that provide plant-based dairy alternatives to label their products as they deem fit. While we applaud the Trump administration’s efforts to reduce the regulatory burden on American companies, and to increase competition in the marketplace, a rulemaking such as the one described above would have the opposite impact. Such regulation would confuse consumers, hurt businesses that compete with the dairy industry, and violate the speech rights of these companies.

The Nutrition, Labeling, and Education Act of 1990 gave the Food and Drug Administration (FDA) the authority to require that most all foods under the agency’s jurisdiction have nutrition labels. The makers of products such as ‘soy milk’ or ‘vegan cheese’ are not trying to hide the fact that they do not contain actual milk or cheese. If they were, this would be in violation of existing federal law, and additional regulations to stop such deception would be redundant. The Code of Federal Regulations already contains stringent ingredient disclosure requirements for product labels.

The FDA, in its request for comment, raises the specter of a lack of awareness among consumers about the basic differences between dairy products and plant-based alternatives. This is largely not the case. In an October 2018 poll conducted by Lincoln Park Strategies on behalf of the International Food Information Council, it was found that only seven to nine percent believe that these products contain actual cow’s milk. The vast majority of respondents correctly identified that these products do not contain cow’s milk.

Producers of these products, as well as those who market them, cannot be held responsible for the select few who fail to look at their nutrient labels. They are no more responsible for this misinformation than Five Guys would be responsible for a select few of their customers not knowing their hamburgers do not, in fact, contain any ham. Nor is Kellogg’s responsible if its customers are not aware that apple juice concentrate is only a trace element in its cereal, Apple Jacks.

What might cause more consumer confusion, however, would be to relabel products such as almond milk. According to Merriam-Webster, the first known use of the phrase “almond milk” was in the 14th century, to describe a dairy alternative. Furthermore, almond milk was accepted as a proper dairy substitute during religious fast days in Europe during the Middle Ages. In Persian culture, almond milk-based desserts have been a staple during Ramadan celebrations for some time as well. This phrase has been around for centuries, even in the most modest estimates.

In fact, existing FDA regulations regarding food ingredient labeling emphasize that ingredients “shall be listed by common or usual name” so producers cannot list complex chemical or formal scientific names of ingredients in any attempt to deceive consumers. Thus, preventing companies from using terms with which most Americans are already familiar runs entirely counter to the intent and expectations set forth by other labeling requirements.

With all of the above being said, it seems clear that the true motivation behind this regulatory effort is an attempt to placate the dairy industry. Setting aside the fact that the government shouldn’t use the force of law to tip the market in favor of special interests, the dairy industry has already received a substantial amount of assistance from the United States government. After the National Milk Producers Federation (NMPF) claimed economic harm from the Trump administration’s steel tariffs, the Department of Agriculture (USDA) issued an aid package that gave the dairy industry $127.4 million in direct aid, and $85 million more in commodity purchases. They received millions more in a second aid package announced late last year.

This aid is on top of the generous subsidies the industry received in the recently-passed Farm Bill. According to the incoming Chairman of the House Agriculture Committee, Rep. Collin Peterson (D-Minn.), “If you have less than five million pounds of milk, and that’s about 240 cows, under what we’ve put in the bill, you will not be able to lose money.”

The government’s recent actions reflect an effort to insulate the dairy industry from market forces. A rulemaking requiring plant-based dairy alternatives to change their names after years of usage, would represent an expansion of that effort to protect the dairy industry from competition as well. Hamstringing these companies’ ability to market themselves directly as a dairy alternative merely because seven to nine percent of the population misunderstands the product would be a betrayal of the Trump administration’s promise to foster competition through deregulation.

According to a report by the market research group, Mintel, sales of plant-based dairy alternatives have increased by roughly 61 percent from 2012 to 2017, while overall dairy milk sales have decreased over that same time span. However, one of the main factors cited by consumers was flavor. This is evidenced by the fact that – while overall dairy milk sales fell – that whole milk sales and the sale of flavored dairy milk increased over that time. The success of plant-based dairy alternatives has not been because of deceptive marketing or misinformation campaigns, but rather due to personal preference. It is hardly the role of the federal government to regulate consumer taste preferences.

Limiting the ability of producers of plant-based dairy alternatives to call their products by their common names would be especially egregious in light of the fact that the federal government is already directly involved in the advertisement and promotion of dairy products. Two of the 22 current agriculture research and promotion boards under the Department of Agriculture are intended to support the dairy industry—the Fluid Milk Processors Promotion Program and the National Dairy Promotion & Research Board.

With the backing of federal resources, these programs directly advertise and advocate on behalf of dairy producers and even attack producers of plant-based alternative products. An article currently listed on the website of the Fluid Milk Processors Promotion Program attacks most-all plant-based milk alternatives, but primarily focuses on coconut milk. Entitled, “What Is Coconut Milk?” the article concludes by stating, “When you compare labels, the nutrients in coconut milk do not match the nutrient powerhouse that farm-fresh milk provides. When people substitute another beverage for milk, they can miss out on important nutrients in their diet.”

At least the Fluid Milk Processors Promotion Program tacitly admits the common term for coconut milk is in fact “coconut milk.”

There is also an issue of constitutionality when considering the regulation of commercial speech. The case on record which governs whether such regulation is constitutional is Central Hudson Gas & Electric Co. v. Public Service Committee of New York (henceforth referred to as Central Hudson). The Court handed down a test for constitutionally valid restrictions on commercial speech. In writing, the opinion of the Court, Justice Lewis Powell laid out the components of this test:

“At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than necessary to serve that interest.”

In analyzing any potential rule, which would prohibit plant-based dairy alternatives from labeling themselves as “milk,” it is clear that it fails the Central Hudson test. The sale of these alternatives under these names is neither illegal nor is it misleading, as has been previously established. Given that both inquiries yielded negative answers under Powell’s criteria, any regulatory effort must cease. Even so, banning the use of the word “milk” in the labelling of dairy alternatives is more extensive than necessary to serve the public health, which is ostensibly the government’s interest in this case. The narrowly tailored approach would be to require companies to list their ingredients, which is already required under law. Thus, any further regulation would be unnecessary and in violation of the First Amendment.

Plant-based dairy alternatives are certainly cutting into the market share of dairy products. However, this is due to personal preference and healthy competition in the market. This is not to say that there are no consumers confused as to the actual ingredients of these products, but this population is so small, it does not justify rulemaking to correct. The administration should look to foster such competition, and encourage the production of better products for consumers across America to enjoy.