Gates Calderon, Fessler and Heinz Review “Regulatory Standoff” on Plant-Based Milks for Law360

As plant-based beverages such as soy and almond milks appear on more store shelves, the definition of “milk” has become the center of a dispute involving legislatures, regulators, litigators and industry groups. Shook Partners Katie Gates Calderon and Lindsey Heinz, with Associate Elizabeth Fessler, explain the debate in “Dairy Vs. Plant-Based ‘Milks’: A Regulatory Standoff” in Law360.

While Canada and the EU have both ruled that plant-based products cannot be called “milk,” the U.S. Food and Drug Administration (FDA) has yet to take determinative action to ensure that products using "milk" contain cow milk, though it does define the term as “obtained by the milking of one or more healthy cows." Although FDA has warned plant-based beverage manufacturers, the agency has not taken enforcement action against such products and has never ruled on a 1997 petition to allow the use of the term “soymilk.” Moreover, legislation has been introduced in both houses of Congress that would require FDA to enforce dairy food-labeling regulations, but both bills remain in committee.

“In short, both manufacturers and counsel advising them are left without a clear answer regarding the proper labeling of plant-based milk products,” Gates Calderon, Heinz and Fessler explain. “As often happens when a regulatory gray area exists, consumers in California have taken to the courts.” In a summary of recent litigation, the authors conclude that courts have tended to allow plant-based beverages to use the term “milk,” finding that “qualifiers” such as soy, almond or coconut limit potential consumer confusion.

“With plant-based products continuing to use ‘milk’ without pushback from the FDA, many companies are likely to continue to use the term to describe milk alternatives. Moreover, the longer terms like soymilk, almond milk and coconut milk remain in use, the stronger the argument those terms are the common and usual name of the products as established by common use,” the authors write. “While the term 'milk' will almost certainly be subject to additional legislative and judicial scrutiny, true clarification will require the FDA to either amend its regulatory framework or utilize its enforcement powers to limit the use of 'milk' on plant-based product labels.”