NMPF Senior Vice President of Communications Alan Bjerga talks about the importance of equal nutrition for all — and how milk in both regular and lactose-free options can assist in that goal — is a bedrock principle in federal nutrition programs. Bjerga also updates on the latest in NMPF’s comment campaign regarding the FDA’s draft guidance for proper terminology in plant-based beverages, discussing the topics in an interview with RFD-TV.
FDA has finally offered its draft guidance on the “Labeling of Plant-Based (Nutritionally Inferior and Misleading) Milk Alternatives.” So now what?
Pay attention to this:
This is from FDA’s draft guidance, showing labeling best practices for plant-based manufacturers. The guidance itself would allow plant-based beverage manufacturers to keep using “milk” on their labeling, but only if – and this is a huge “if” – they include disclosures like the ones above specifying nutritional differences. That isn’t enough to truly protect consumers, but it’s a start. Even more importantly, the agency has accepted the reality of consumer confusion over nutritional equivalence, the main argument dairy and its allies have been making for years. With that premise acknowledged and accepted, the logical conclusion –end the confusion by getting dairy terms off the labels – becomes much easier to achieve.
The draft guidance gives plant-based beverage purveyors a choice: They can use “milk” with their plant-based term and disclose their differences (i.e. shortcomings) on their packaging, or they can skip the disclaimers by not using a dairy term at all. That’s the solution consumer advocates and dairy farmers have been pushing for all along.
The next few months will be telling in whether the plant-based beverage industry gets the message.
If this guidance is taken seriously, the most misleading labels should start to disappear as packaging gets updated and store shelves get restocked. Many mislabeled “milks” that are really drinks or beverages should start being labeled as drinks or beverages. For those that stubbornly insist on misleading consumers, disclosures should appear – real ones with clear statements, not wiggle words in tiny print that say differences exist without stating what those differences are. The guidance is voluntary, and it’s only a draft, but FDA has put the industry on notice. The next move’s on them.
And it’s on us too, to make sure positive change really happens. FDA’s public comment period on the guidance lasts until April 24. NMPF has directions on how you can submit a comment. Meanwhile, take pictures to post on social media. Write companies that aren’t living up to the labeling example above. FDA’s guidance is far from enough. That’s why we’re pushing to pass the DAIRY PRIDE Act, which would direct FDA to enforce its own standard of identity for milk – which, had that occurred in the first place, plant-based misinformation would never have proliferated.
The fight for transparent labeling, is far from over, but it’s going the right way. Keep your eye on the carton. Change should be coming. It’s up to all of us to make sure that it does.
From NMPF President and CEO Jim Mulhern:
“The National Milk Producers Federation applauds the bipartisan members of the House of Representatives who today re-introduced the DAIRY PRIDE Act, which adds momentum to legislation that saw Senate re-introduction last week and needs to pass Congress this year.
“With proposed FDA guidance that acknowledges the problem of consumer confusion over the nutritional content of plant-based beverages, but doesn’t go far enough to solve the problem by enforcing its own standards of identity and limiting dairy terms used in food labeling to dairy products, DAIRY PRIDE is necessary for FDA to fulfill its own responsibilities.
“To eliminate consumer confusion over their nutritional content, plant-based drinks or beverages shouldn’t be allowed to use dairy terms in their labeling. That’s common-sense, and DAIRY PRIDE is a common-sense solution. We thank the House sponsors of the legislation – Reps. John Joyce, R-PA; Ann Kuster, D-NH; Mike Simpson, R-ID; Joe Courtney, D-CT; Derrick Van Orden, R-WI; and Angie Craig, D-MN – for being champions for consumers in this important nutrition and health issue.
The Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese To Promote Regular Intake of Dairy Everyday Act” aka DAIRY PRIDE, requires FDA to enforce its standards of identity and would supersede the inadequate solution it offered last week, in which plant-based beverages could call themselves “milk” as long as they clearly state their nutritional differences with real dairy. FDA is accepting comments on its draft guidance until April 24.
DAIRY PRIDE was introduced in the Senate last week. Lead sponsors in that chamber were: Sens. Tammy Baldwin, D-WI; Jim Risch, R-ID; Peter Welch, D-VT and Susan Collins, R-ME.
NMPF Senior Vice President of Communications Alan Bjerga discusses the organization’s recently concluded board of directors in Arlington, VA in an interview with RFD-TV. NMPF’s board unanimously approved a proposal to modernize the Federal Milk Marketing Order system to benefit farmers and better reflect today’s dairy industry. NMPF board members also discussed the ongoing fight against plant-based milk imitators, as well as advances in animal care and sustainability.
The U.S. Food and Drug Administration’s (FDA) unwillingness to limit dairy terms to true dairy products makes passage of the DAIRY PRIDE Act more necessary than ever, Sen. Tammy Baldwin, D-WI, said in a Dairy Defined podcast released today.
“They’re going to continue to allow mislabeled imitation products to be on the market,” Baldwin said. “Wisconsin farmers work so hard to meet the FDA standards of nutrition and quality. They can’t put the word ‘milk’ on the side of a carton of milk unless they meet those standards. It is not fair for plant-based products to be able to say they’re milk when they don’t meet those standards at all.
Baldwin, along with Sens. Jim Risch, R-ID; Peter Welch, D-VT, and Susan Collins, R-ME, last week reintroduced the DAIRY PRIDE Act, which would require FDA to enforce its standards of identity and supersede the inadequate draft guidance it offered in February, in which plant-based beverages could call themselves “milk” as long as they clearly state their nutritional differences with real dairy.
Baldwin said DAIRY PRIDE could pass Congress this year via one of several vehicles, including the farm bill due this year.
“Many of the folks that I’m joining forces with are going to have significant input as we draft a new farm bill, which is something that I expect to get completed this calendar year. So that’s certainly one area that we can look towards. We also have funding bills for the Food and Drug Administration, and that would certainly be another opportunity to look at this type of legislation.”
DAIRY PRIDE is an acronym for the Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese to Promote Regular Intake of Dairy Everyday Act.
FDA’s guidance is open for public comment until April 24. Dairy advocates may learn more about the issue and offer comments here.
The full podcast is here. You can also find the podcast on Apple Podcasts, Spotify and Google Podcasts. Broadcast outlets may use the MP3 file. Please attribute information to NMPF.
Long-awaited FDA guidance on plant-based beverages that encourages manufacturers of plant-based beverages to disclose their nutrient inferiority and acknowledges the public health concern of nutritional confusion over such beverages was seen as a first step toward labeling transparency by NMPF, even as the proposed guidance’s allowance of such beverages to call themselves milk spurred a vow for further action.
The guidance “falls short of ending the decades-old problem of misleading plant-based labeling using dairy terminology,” Mulhern said in a statement released shortly after FDA’s announcement Feb. 22. “By acknowledging both the utter lack of nutritional standards prevalent in plant-based beverages and the confusion over nutritional value that’s prevailed in the marketplace because of the unlawful use of dairy terms, FDA’s proposed guidance today will provide greater transparency that’s sorely needed for consumers to make informed choices.
“Still, the decision to permit such beverages to continue inappropriately using dairy terminology violates FDA’s own standards of identity, which clearly define dairy terms as animal-based products. We reject the agency’s circular logic that FDA’s past labeling enforcement inaction now justifies labeling such beverages “milk” by designating a common and usual name. Past inaction is poor precedent to justify present and future inaction.”
Integrity in the use of dairy terms has been an NMPF focus for more than four decades. Agency activity stepped up in 2018, after then-FDA Commissioner Scott Gottlieb pledged a fresh look at the issue. A request for comment generated more than 13,000 responses. Guidance in the aftermath of those comments was promised in 2021 and was initially expected last summer.
Mulhern, in NMPF’s statement, noted that, while accepting nutritional confusion is a key advance for dairy and consumers, without any means of enforcement, the guidance could hold little value, urging Congress to re-introduce and pass the DAIRY PRIDE Act, legislation that would mandate FDA enforcement of its own standards of identity.
“Because FDA’s proposed guidance is meaningless without action, enforcement will be necessary to ensure that this limited progress is reflected on grocery shelves,” he said. “For these reasons, we will continue our work in Congress to pass the DAIRY PRIDE Act, which would direct FDA to enforce its own rules and clarify that dairy terms are for true dairy products, not plant-based imposters.”
NMPF’s Support for DAIRY PRIDE, introduced in the Senate by a bipartisan group of senators on Feb. 28, adds another level of momentum to the effort to create labeling transparency, even as NMPF encourages dairy supporters to comment on the FDA’s guidance, which is here.
Sens. Tammy Baldwin, D-WI; James Risch, R-ID; Peter Welch, D-VT; and Susan Collins, R-ME, led the reintroduction of the bill, which would require FDA to increase enforcement of existing dairy standards of identity, updated to respond to FDA’s guidance by essentially nullifying it. House re-introduction is expected in the next few weeks.
“Consumers and dairy producers, along with their allies in the nutrition and health communities, thank Sens. Baldwin, Risch, Welch and Collins for their leadership in this important public-health issue,” Mulhern said in a statement the day of the re-introduction. “We look forward to working with our Senate and House champions to enact the DAIRY PRIDE Act during the 118th Congress.”
While that debate is underway and comments are being accepted by FDA, Mulhern urged dairy farmers and consumers to speak up for labeling transparency – and pledged NMPF’s leadership in the effort.
“Consumers shouldn’t have to make choices in a marketplace that’s less than fully transparent,” he said. “And until the federal government fully lives up to its mission, NMPF will continue to lead the battle for labeling transparency.”
FDA’s proposed guidance is open for public comment here until April 24.
The late-February release of proposed FDA guidance on the labeling of plant-based beverages is far from what dairy producers want or consumers deserve.
The agency’s justification of terms including “almond milk,” “soy milk” and other terms as commonly accepted relies on circular reasoning, using its previous non-enforcement of its standards of identity to justify further inattention. And as guidance, the portion that does improve the consumer marketplace – front-of-packaging disclosures by plant-based beverages of their inferiority to dairy – does not have the same strength as regulation. FDA can “guide” a manufacturer, but company disclosures are voluntary. The good news is that most companies follow such voluntary guidance for fear of bad publicity or legal challenges.
As such, FDA’s proposal contains a major win for dairy: the acknowledgment that consumer confusion over nutritional content is a public health issue that requires agency intervention. For nearly a decade, that’s been NMPF’s core argument against the mislabeling of plant-based beverages. And by accepting it, FDA has laid the groundwork for our work toward the logical conclusion of the need to end nutritional confusion: Reserving the use of dairy terms for dairy products only, in keeping with FDA’s own standards of identity. We’re on the right path, and FDA’s guidance can directly contribute to our own eventual success.
A bit of background: Three decades into what’s been a more than four-decade struggle to get FDA to take this issue seriously, in the early 2010s, the issue was in an unsatisfying stasis. NMPF would complain, and nothing would happen. Meanwhile, plant-based imposters were proliferating in the marketplace, to the detriment of public health. Beginning in 2015, we at NMPF zeroed in on the real issue of nutritional confusion – dismissing the plant-based red herring that “consumers know it’s not dairy, they’re not confused” to more accurately describe what “confusion” really meant: the mistaken belief that plant-based beverages provided the same level of nutritional benefits as real dairy.
We hammered that point home at every opportunity, to the extent that, when then-FDA Commissioner Scott Gottlieb was asked about nutritional confusion in a 2018 hearing, he had been informed enough about the issue to make his famous “confession”: “An almond doesn’t lactate, I will confess.”
With that acknowledgment we pushed even harder. Through quality submissions to an FDA comment period on the issue, through constant attention to the issue through the media, through tough questions from dairy’s allies in congressional hearings, we helped FDA – and importantly, consumers, who in 2022 drank a lower volume of plant-based beverages than the year before – understand the importance of the issue. We offered our own road map on labeling through a 2019 Citizen’s Petition. And with allies including the American Academy of Pediatrics and the School Nutrition Association, we showed it wasn’t just dairy that cared about consumer confusion – education and health professionals did as well.
And that brought us to last week. While FDA clearly wanted to cover over its decades-long failure to enforce existing standards by giving the plant-based folks the ability to use “milk,” the nutrition disclosure recommendations and the acceptance of nutritional confusion as a public health issue are powerful tools with which we can move forward in pursuit of full transparency. First of all, FDA’s concern for the issue adds impetus for what’s now the most promising immediate solution to the problem – congressional passage of the DAIRY PRIDE Act, which would require FDA to enforce milk’s standard of identity in the name of solving the very problem it’s identified.
Second, though FDA guidance is non-binding, as I’ve noted, it’s something industry takes seriously. We will be watching corporate practice on labels – and we won’t accept labeling that ignores FDA’s guidance or clearly attempts to do as little possible to get by. The plant-based industry is built on misinformation, and we expect old habits to die hard. But we’re in a new landscape, and we’ll make sure that consumers gain maximum benefit from the changed regulatory environment by reminding them of the nutritional inferiority of various fake milks.
This journey is far from complete. FDA has opened a comment period on the guidance that’s open until April 24. We have a call to action here that allows you to tell the agency not to backslide on its guidance, and in fact to go further to protect consumers. Momentum is on our side, and it’s gratifying to see an approach we consciously understood nearly a decade ago yield benefits that will only increase.
But it’s not time to let up on the gas, as our work is far from complete. We’ll take what FDA has offered. And we’ll make it even better in the future.
By Clay Detlefsen, Senior Vice President for Environmental and Regulatory Affairs, NMPF.
It’s a tale that’s lasted decades too long. Plant-based companies continue to use dairy terms on their products, violating labeling laws as the Food and Drug Administration (FDA) continues to look the other way. But now a new kid has entered the conversation: synthetic “dairy” products that claim to be “animal-free,” yet worthy of a dairy name.
Synthetic dairy proteins are made in the lab by taking a section of a DNA sequence, programming or genetically modifying yeast and microflora with a specific DNA sequence and then using a precision fermentation to replicate it. The end product is a single whey protein, that’s then used to make products that companies are touting as dairy. That’s similar to the playbook the plant-based industry has run for years – and as research shows, it creates a false equivalence among consumers.
However, these companies aren’t making actual dairy, like milk, cheese and ice cream. Dairy foods are extremely complex. They offer essential nutrients, numerous high-quality proteins, micronutrients, and hundreds of fatty acids, all of which interact with each other to deliver one of the most nutritious foods in the marketplace. Creating a single synthetic dairy protein and mixing it with other ingredients to make a synthetic food product – the method currently being developed for commercial products – doesn’t creating anything approaching the complexity of actual dairy.
The National Milk Producers Federation (NMPF) has been calling on FDA to enforce its own standards of identity for dairy for decades. This has included numerous meetings, comments, filing a Citizen Petition, and sending letters to the FDA Ombudsman. Last March, FDA sent Draft Guidance for Industry on the Labeling of Plant-based Milk Alternatives and Voluntary Nutrient Statements to the Office of Management and Budget. That document has yet to be released. In the meantime, we continue the fight for labeling integrity, for dairy farmers and for consumers.
NMPF’s largest concern with the misuse of dairy terms are the nutritional issues that have arisen in recent years from the use of plant-based beverages as alternative nutrition sources, especially in children. Because of plant-based products not following the labeling laws and using dairy terms on their products, consumers are assuming that they offer the same nutrient package as dairy products, which is inaccurate. In the most critical of cases, it has led to nutritional deficiency diseases like Kwashiorkor and rickets.
NMPF for decades has been baffled by why FDA has not enforced its rules, especially given that it results in human health harm. Recently, FDA issued a new standard of identity for yogurt: In that rulemaking, FDA specifically calls out the importance of standards. But it seems FDA only cares about such standards when it comes to a real dairy product; with plant-based (and soon, we worry, lab-based) imitators, a Wild West mentality has prevailed. The inconsistency is frustrating. What they have been doing by allowing plant-based food companies to break all the labeling rules is simply wrong, and we cannot allow it to spread to the new up and coming lab-created, synthetic foods.
To better understand FDA’s haphazard approach to standards when applied to dairy, NMPF has sent a Freedom of Information Act (FOIA) request for all information related to plant-based labeling, the use of the term animal-free, the negative human health consequences due to mislabeling of plant-based products and much more. It’s critical that we do this, as with a new generation of imitators on the horizon, we need to stand up for dairy now before consumer confusion proliferates further.
This column originally appeared in Hoard’s Dairyman Intel on Feb. 6, 2023.
The marketers are at it again, breathlessly promoting “innovation” as a storm of startups gather, each hoping to cash out their venture capital before their business models crash and burn. It’s happened in “meat,” it’s happened among some plant-based food manufacturers, and the consumers are always the ones left holding the bag, with nutritional needs that aren’t met and a Wild West government attitude toward food labels that creates confusion over what a food is and isn’t.
That’s why we’re warily watching the rise of so-called lab-based dairy – the dressing up of pre-existing fermentation technology as innovation, all the better to bilk customers with inferior, overpriced goods. To avoid the frustration of the past four decades, in which plant-based imposters have proliferated as the U.S. Food and Drug Administration turns a blind eye to its own rules on dairy terms, it’s ever more important for the agency now to create clear labeling guidelines for such products, making clear distinctions to protect consumer health and safety, and avoid past mistakes.
First, a primer on what companies such as Perfect Day, which advertises itself as providing “Sustainable Animal-Free Dairy and Protein,” provide. Using “precision fermentation” technology, an imitator can duplicate an individual dairy protein – for example, a single whey protein among numerous proteins found in natural whey – and reproduce it at a commercial scale without using its natural source of creation, an animal.
The technology isn’t new: In fact, the dairy industry pioneered it, using fermentation to produce calf rennet for cheesemaking. But through the wonders of marketing and a loose definition of what “dairy” is, startups are creating the impression that they’re using cutting-edge technology to develop a true dairy product. In fact, nothing could be farther from the truth.
Here’s why. In food science, an important principle is this: We don’t know what we don’t know. Appreciation for food’s complexity – how nutrients interact, how much the food-creation process matters – has advanced from the 20th century, when cereal marketers could slap “Fortified With 8 Vitamins and Minerals” and deem sugary breakfast products a healthy food.
Milk isn’t just a single synthesized protein or a simple collection of nutrients. It’s a complex biologic product evolved over millennia, with nutritional and health benefits created via innumerable interactions within an animal that only the arrogant and foolish would claim it can perfectly reproduce. While in a sense, these lab-synthesized products come closer to the mark than plant-based fakes – at least they have overlapping strands of some matching DNA – a single dairy protein is no more “milk” than a steering wheel is a car. These products do not come anywhere near replicating natural dairy.
And, given the necessity of the animal to the process, they never will. The U.S. Food and Drug Administration’s stated standard of identity for milk as “the lacteal secretion … obtained by the complete milking of one or more healthy cows” isn’t the result of industry lobbying or an outdated conception of dairy. It reflects a solid grounding in scientific reality, one that isn’t changed by a fermentation vat and a misleading marketing pitch.
About those vats. Beyond the simple scientific refutation of synthesized, lab-based products as dairy, it’s important to note that the purported advantages of these products, specifically regarding their sustainability, can be wildly overstated.
It’s true that dairy cows contribute to greenhouse gas emissions, for the same reasons you do — they eat, drink, and use land. But a well-managed, 21st century dairy also fits well into an environmental lifecycle that includes using a cow’s four-chambered stomach to convert plants that are inedible for humans into milk and dairy products we can consume and enjoy, as well as creating byproducts that can displace fossil fuels. That’s why we’re so excited about and confident in our sector’s highly achievable Net Zero Initiative.
Lab-based dairy sustainability is less certain. What’s the electric bill for the industrial bioreactor used to make small product batches of casein into larger ones? What’s the carbon footprint needed for the large-scale reproduction of a single protein, versus the effort used by an animal that can perfectly create every single necessary substance on its own? And what are the prospects of producing at competitive cost and scale in a factory what cows produce naturally and is sold relatively inexpensively? If the benefit exists, where are the studies that verify it? And who funded them?
All of this, and more, argues for extremely clear labeling of technologically primitive dairy-protein replicants sold in the marketplace that, without regulatory intervention, are guaranteed to mislead and confuse consumers more than they benefit them. We’ve seen that in the proliferation of mislabeled plant-based products. A factory-synthesized dairy protein, for example, can still trigger milk allergies. But what choice might a consumer with such allergies, upon seeing an “Animal Free” marketing claim, make? And in the real world – the one where consumers eat food, not DNA sequences – what’s the safest, most honest way to inform them that what they consume is nutritionally doing what dairy naturally does, even when we ourselves don’t necessarily know exactly what’s creating that experience?
Here’s how: By relying on clear labeling guidelines that have existed for decades and are grounded in well-established science and consumer understanding.
In some ways, the looming labeling battle over industrially duplicated “dairy” may seem more difficult than the plant-based challenge. But from another angle, the need for labeling integrity is obvious and the arguments clear. Dairy has been, is today, and always will be, the product of an animal-based production system. It’s what makes it what it is. Despite the attempts to blur these crucial distinctions that are already under way and promise to proliferate, that must always be kept top-of-mind. We certainly will. And we’ll do everything we can to make sure that FDA, members of Congress and consumers do too.
Jim Mulhern
President and CEO, National Milk Producers Federation
As a summer deadline for FDA guidance on the labeling of plant-based alternatives approaches, NMPF staff have been in communications with key administration officials and Capitol Hill lawmakers pressing to ensure transparency and integrity in the use of dairy terms and labeling – all the while maintaining the public drumbeat for positive change.
NMPF leadership held a call with FDA and administration officials May 16, discussing dairy’s main arguments for an FDA guidance that reaffirms the agency’s own commitment to enforcing its standards of identity for product labels, which in the case of milk is clearly defined as a dairy product. Allies on Capitol Hill are also being engaged to keep pressure on FDA to stand up for consumers and end the marketplace confusion over the nutritional value of plant-based vs. dairy products.
And finally, NMPF has been devoting its recent Dairy Defined columns to the issue, focusing on FDA commissioner support for labeling integrity as well as instances in FDA’s own history in which it’s properly defended dairy terms, underscoring that a better approach is possible. NMPF looks forward to a positive outcome on the issue, and is prepared to respond to whatever guidance is offered.
As a promised summer deadline for U.S. Food & Drug Administration guidance on the labeling of plant-based alternatives approaches, dairy farmers and the entire industry are readying for a milestone in the decades-long effort we’ve led to ensuring integrity in marketplace labeling of dairy products. The news could be good for consumers, or it could be insufficient for their needs – the agency has been very tight-lipped in our conversations with them.
But after more than four decades of advocacy on this issue, we at NMPF aren’t getting too worked up about any gossip, whether or not it’s favorable to consumer and dairy interests. Why are we so serene in the midst of the Washington rumor mill? With apologies to an old political truism, “It’s the facts, stupid.” The facts are on our side, and regardless of plant-based marketing whims or FDA’s thus-far history of ambivalence on this issue, facts matter. That’s why we know that, regardless of the details any guidance may contain, we won’t accept anything less than full labeling transparency as we continue to focus on this issue. The problem of nutritional confusion is too significant for consumers and medical professionals to ignore, and labeling integrity is too near and dear to our hearts to accept anything other than a fairer, more transparent marketplace for all.
So, as we wait on FDA, a few things to keep in mind:
For those reasons and others, we’re anxiously awaiting the guidance document. With decades of experience and advocacy under our belts, we’re ready for this. FDA has a chance to start afresh and reaffirm its mission to protect consumers – not a bad option for a currently embattled agency. And if, for whatever specious reasons, the guidance isn’t the reaffirmation it needs to be? Then we redouble our efforts, with strengthened resolve and an awareness that facts don’t change, and consumer needs don’t go away.
Our energy on this topic is boundless, and we never shy from the chance to do what’s right. We hope FDA feels the same as we do – for the sake of consumers, it needs to. And with that, we’re looking forward to what the agency has to say.
