IJ to FDA: Milk Doesn’t Have to Come From Cows to Be Called Milk

Andrew Wimer
Andrew Wimer · January 28, 2019

Late last week, the Institute for Justice (IJ) filed an official comment with the Food and Drug Administration (FDA) opposing the agency’s suggestion that non-dairy milks should be banned from using the word “milk” on their labels.

“If a consumer is confused about the source of a product labeled ‘almond milk,’ then he has bigger problems than being confused about which milk to buy,” said Justin Pearson, a senior attorney at IJ, which recently filed a lawsuit challenging the agency’s definition of skim milk. “The government does not have the power to change the dictionary. For centuries, consumers and producers have used the term ‘milk’ to mean much more than just milk from cows. Consumers are fully aware that almond, soy and cashew milk were not made by cows. The FDA’s proposed rule not only flies in the face of common sense, but it also violates the First Amendment, which protects food producers’ right to call something what it is.”

Facing pressure from the dairy industry, which has seen a 25% decline in dairy milk consumption, in 2018 the FDA announced that it was considering whether to issue new guidance prohibiting non-dairy milk producers from labeling their product “milk.” The announcement, which quickly came under intense fire, suggested that the FDA could require that any food labeled as “milk” must originate from a mammal’s mammary gland.

IJ’s comment points out that, under current Supreme Court precedent applying the First Amendment, “The government is not allowed to ban businesses from making truthful statements on their beverage labels, and the determination of whether something is truthful is whether it comports with the common understanding, even when it directly conflicts with the government’s regulatory definition.”

The comment further argues that the FDA’s suggested approach would, “confuse consumers, harm small businesses across the country and raise serious First Amendment concerns.”

The comment was written by IJ Senior Attorney Justin Pearson, who was the lead attorney in a lawsuit challenging Florida’s attempt to prevent a dairy farmer from labeling skim milk as “skim milk,” because she did not want to add artificial Vitamin D. The case resulted in a federal appellate court decision that enforcement of the milk standard of identity against additive-free skim milk violated the First Amendment. In that case, the standard had been used by the government to only allow skim milk to be called “skim milk” if vitamin additives had been injected into it.

The lack of consumer confusion over this issue has also been shown by federal courts’ repeated rejection of class-action lawsuits claiming consumers were confused by these terms. As one federal judge explained in dismissing a challenge to the term “soymilk,” “it is implausible that the use of the word ‘soymilk’ misleads any consumer into believing the product comes from a cow.”

“This is a solution in search of a problem,” Pearson continued. “The lobbyists for giant dairy companies have been requesting this for decades, and the FDA should go back to doing what it has always done before—rejecting it.”