by Sally Colby

Dairy farmers have become increasingly frustrated with highly visible ads for products that clearly contain no dairy ingredients, and the National Milk Producers Federation (NMPF) shares that frustration.

Alan Bjerga, senior vice president of communications for NMPF, said the organization filed a citizen’s petition with the U.S. Food and Drug Administration (FDA) outlining what the NMPF sees as a roadmap for the next steps the agency should take. The steps would end the violation of the FDA’s own standard of identity rules on dairy labeling as currently practiced by numerous plant-based products.

The document was filed with the FDA on Feb. 21 and follows the end of the comment period, which resulted in more than 13,000 comments. The document is intended to encourage the FDA to seek a practical solution to the dairy labeling problem – a solution that’s grounded in current law and addresses contemporary concerns.

“The appropriation of dairy terms on labels for non-dairy products has been an issue this organization has been vocal about for decades,” said Bjerga. “That’s regardless of food consumption trends or the food fad of the day. What’s different now is the FDA’s serious engagement on the issue. That’s in part due to our dogged insistence the FDA enforce its existing labeling standard, and also reflects the growing variety of these products in the marketplace.”

Bjerga said there’s anecdotal evidence of consumer confusion over the nutritional content in products that, in the most extreme consequences, have led to adverse health effects in children. “That was outlined by comments from the American Academy of Pediatrics and others during the comment period,” he said. “There’s also survey evidence that points out nutritional confusion in the marketplace. Those were also incorporated in comments.”

Further explaining the guidance is Tom Balmer, executive vice president of NMPF. Balmer has a strong background in food science with expertise in dairy products’ standard of identity and food labeling. He said the beauty of standardization for certain widely consumed food products is that consumers’ expectations regarding nutrition, taste and mouthfeel are met, and in the case of cheese and butter, meltability. He added that plant-based foods bearing traditional dairy terms on labels have broken this bond with consumers.

Through the petition, NMPF is requesting the FDA commissioner to take action to resolve the long-standing problem surrounding the labeling of plant-based versions of standardized dairy products. “We appreciated the agency’s call for comments on this matter through the just-closed docket,” said Balmer. “We really believe this exercise wouldn’t have been necessary had the agency focused on the issue more intently in years past and employed the applicable labeling regulations already in place.”

While it will take time for the FDA to sift through 13,000 comments, Balmer said that number attracted FDA’s attention. “For us, it comes down to the law,” he said. “This is a case of obeying existing labeling regulations that apply to us, and we think it’s only fair for other products who are looking to cash in on the halo of our products to obey the laws that are in place now.”

Balmer said the docket afforded one more chance to explain why there is a compelling need to provide resolution to the labeling issue. He added that a comprehensive fix has been available all along, but the FDA’s long-term inaction has allowed marketplace chaos to grow exponentially. Balmer also noted that labeling has been an issue through several administrations, and the NMPF will continue to push for action if necessary.

To clarify the organization’s stand, Balmer said the NMPF is not trying to keep dairy imitators out of the market, but insists that such food products follow the law. He believes it’s possible to modify existing regulations to produce common sense labeling that provides truthful, transparent and reasonable options. “The NMPF’s approach is not trying to reinvent the wheel,” he said. “It draws on existing regulations and proposed modifications to those regulations in order to accomplish two things: one, the appropriate labeling of plant foods that mimic standardized dairy products but are nutritionally inferior to those dairy products; and two, the appropriate labeling of plant foods that mimic dairy products that are not nutritionally inferior.”

For non-dairy foods that substitute and resemble standardized dairy food but are nutritionally inferior to the dairy foods they reference, NMPF urges immediate enforcement of the existing imitation labeling regulation because such products falsely imply that non-dairy products are equivalent in key nutrients to the standardized dairy foods. Balmer said under the existing regulation, a food is considered to be misbranded if it is an imitation of another food, unless its labeling includes the word “imitation” followed by the name of the food it’s imitating. This regulation applies to all foods, not just standardized dairy products.

For example, plant-based foods that bear the term “milk” or “yogurt” on their labeling but are nutritionally inferior to milk or yogurt should be labeled “imitation milk” or “imitation yogurt.” Nutritional inferiority is defined by FDA as “any reduction in content of an essential nutrient that’s present in a measurable amount.” Balmer said this regulation is not new, and the NMPF petition requests the FDA simply but firmly enforce the rules of their own making.

Non-dairy substitutes that are nutritionally inferior to standardized dairy products could avoid being labeled as imitation by not using any standardized dairy terms. For fluid products, a label might be “almond beverage” or “fruit drink.”

Non-dairy substitute foods could avoid imitation labeling by prominently and conspicuously stating that the food is nutritionally inferior to the referenced food. Under this proposed option, plant-based food marketers would be required to provide supplemental information for complete disclosure and transparency.

“Our review clearly demonstrates that the federal government has an interest in consumer health and marketplace transparency, and through this, can direct the type of labeling information conveyed through commercial channeling in a manner considered proportional to the concern,” said Balmer. “We believe it’s important to note that our approach does not advocate for any so-called ban. It simply relies on proper disclosures that allow for appropriate, truthful and non-misleading messaging. In the end, products that are milk-like or yogurt-like are not actually milk or yogurt, and the distinctions are critical to informed decision-making by consumers.”