Use of the Names of Dairy Foods in the Labeling of Plant-Based Products

Submitted Electronically

Scott Gottlieb, Commissioner
c/o Dockets Management Staff (HFA–305)
Food and Drug Administration
5630 Fishers Lane, Rm. 1061
Rockville, MD 20852

Re:       Docket No. FDA–2018–N–3522, Use of the Names of Dairy Foods in the Labeling of Plant-Based Products

Dear Commissioner Gottlieb:

The Animal Law Committee (“Committee”) of the New York City Bar Association writes in response to the FDA’s request for comments on the topic of the “Use of the Names of Dairy Foods in the Labeling of Plant-Based Products.”

As background, the New York City Bar Association is an independent non-governmental organization of more than 24,000 lawyers, law professors, and government officials, principally from New York City but also from throughout the United States and 50 other countries. Its Animal Law Committee is the first committee of its kind in the United States. In 2018, we presented a public program that explored issues relating to plant-based milks with an attorney who represents a plant-based food organization, an attorney who represents dairy farmers, and the past chair of the Committee.[1] We also submitted a comment to Congress opposing the DAIRY PRIDE Act[2] and a letter to the FDA in response to a request from 32 members of Congress that the FDA investigate and take action against manufacturers of plant-based products labeled “milk.”[3]

SUMMARY

The FDA is seeking comments to inform its “development of an approach to the labeling of plant-based products that consumers may substitute for dairy foods.” The Committee responds to the following questions in the docket: (1) Why do consumers purchase and consume plant-based foods that resemble dairy foods? and (2) What is consumers’ understanding of the amount or proportion of plant-based ingredient(s) relative to other ingredients in plant-based products?

We also make the following recommendations about an approach to the labeling of plant-based foods that consumers may substitute for dairy foods: (1) For plant-based milk products, require that labels disclose the proportion of plant source ingredients to water; (2) Prohibit the phrase “non-dairy” on products that include dairy; and (3) Require all food product labels to disclose the presence of an animal-derived ingredient. We hope that the information and recommendations that we provide will help the FDA develop regulations that provide consumers who purchase plant-based products the ability to make an informed choice about the products they are consuming.

Finally, although the FDA does not directly solicit information on whether plant-based milks should be prohibited from using the term “milk” in their product names—as some representatives of Congress have called for—we explain why such a step would be inappropriate.

WHY DO CONSUMERS PURCHASE AND CONSUME PLANT-BASED FOODS THAT RESEMBLE DAIRY FOODS?

Consumers purchase and consume plant-based milks, ice cream, yogurt, and cheese instead of their animal-based counterparts for a variety of reasons, including because the consumers (a) are allergic to cow’s milk;[4] (b) are lactose intolerant;[5] (c) have adopted plant-based diets on the recommendation of their doctors and nutritionists or for health reasons;[6] and/or (d) prefer the taste of plant-based milks. In addition, some consumers of plant-based milk alternatives (e) have concerns about the welfare of cows and heifers on dairy farms;[7] (f) are concerned about the effect of dairy farms on the environment;[8] (g) belong to religions that restrict or prohibit the consumption of animal-derived foods; and/or (h) possess a moral conviction that it is unjust for humans to exploit non-human animals.[9] While reasons (a) through (d) are largely self-explanatory, the Committee elaborates on reasons (e) through (h) below to provide a better understanding of the myriad reasons why consumers buy plant-based milk substitutes.

Some Consumers Limit Their Consumption of or Do Not Consume Dairy Products because They Have Concerns about the Welfare of Cows and Heifers on Dairy Farms

Some consumers limit their consumption of or do not consume dairy products because they have concerns about the welfare of cows and heifers[10] on dairy farms.[11] Some of these concerns relate to routine farming practices, including but not limited to the following:

• Separating calves from mother cows at birth. Cows are regularly impregnated throughout their lives because, in order to produce milk, cows must give birth.[12] In order to save cows’ milk for human consumers, dairy farms routinely separate calves from their mothers within a few hours or days of birth, which can cause stress and mental suffering to the cow and her calf.[13] In 1947, the founder of the Vegan Society remarked, “[T]he use of milk must be a greater crime than the use of flesh-foods, since after all the exploitation of motherhood and calf killing the cow must face the slaughterhouse. Thus the dairy cow suffers far more than the bullock taken from the field and slaughtered.”[14] This concern about cows and their calves, which was voiced over 70 years ago, still resonates today.[15]
• Killing “spent” cows and their male calves. Cows can live naturally for more than 20 years.[16] But after only three or four years, cows used by the dairy industry are killed for their meat[17] and many intensively fed cows who produce high amounts of milk are killed before the end of their first lactation.[18] When a cow gives birth to a male calf, he will be destined for meat production. Before he is killed, he is likely to suffer from painful and frightening procedures, such as being dehorned without analgesics[19] and being castrated.[20]
• Denying access to pasture. Most U.S. dairy farms do not give their cows access to the outdoors or they keep them on outdoor dry lots with little or no access to pasture.[21] Access to pasture is important to cow health, and studies have shown that it can reduce the incidence of mastitis, lameness, and foot and leg lesions.[22] (According to the USDA, roughly 20% of cows and 8% of bred heifers on U.S. dairy farms had a case of lameness during a year prior to the farms’ interview by the USDA.[23] Dairy cows frequently suffer painful health conditions, such as mastitis and hoof and leg problems.[24])
• Psychological harm caused by conventional farming practices. Cows have “complex cognitive, emotional and social characteristics,” and dairy farms compromise their cognitive, emotional, and social needs and interests as sentient beings.[25] Moreover, they are exposed to distressful and unnatural conditions during transport and slaughter.[26]

In addition to concerns about routine dairy farm practices, some consumers of plant-based milks are concerned about egregious conditions exposed in numerous videos and photographs of dairy farms shot by undercover investigators or as part of government inspections.[27] These videos and photographs have exposed filthy conditions and violence by handlers, sometimes resulting in criminal convictions and closure of dairy farms. For example, in Idaho’s largest dairy operation, handlers were filmed beating cows with a cane, kicking and stomping on cows that had fallen in milking stalls, and dragging a downed cow by a chain around her neck; three of those handlers were charged with animal cruelty.[28] New Mexico’s Winchester Dairy closed in 2014 after an undercover investigator filmed “workers using chains and metal wires to whip animals on their faces and bodies, using tractors to drag milk cows too weak to walk on their own, and electrically shocking the genitals of many animals to get them to move.”[29] In 2017, in Florida, undercover video of two dairy farms showed handlers kicking cows in the face and beating them with metal rods, prompting a major supermarket chain to suspend purchases from the dairies;[30] two of the handlers were arrested for animal cruelty.[31] In 2017, the Oregon Department of Agriculture photographed cows on a dairy farm standing ankle-deep in their own waste.[32] In Wisconsin, two dairy farm workers were convicted of multiple counts of animal cruelty relating to treatment of cows in April 2014 after undercover video showed them kicking, whipping, beating and stabbing cows in the face and body.[33] There are more examples too numerous to list in this letter.

Some Consumers Do Not Consume or Limit Their Consumption of Dairy Products because They Have Concerns about the Effect of Dairy Farms on the Environment

Some consumers do not consume, or limit their consumption of, dairy products because they have concerns about the effect of dairy farms on the environment.[34] Waste produced by large dairy farms impacts air pollution and air quality, water pollution, and climate change.[35] In the United States, manure from livestock is the largest source of ammonia emissions, which is an important atmospheric pollutant.[36] Dairies are responsible for about 1.3% of the United States’ greenhouse gas emissions.[37] One cradle-to-grave life cycle assessment estimates that the cumulative greenhouse gas emission is 17.6 pounds of carbon dioxide emissions per gallon of milk consumed, with the largest contributors to such emissions being feed production for cows on dairy farms, enteric methane, and manure management.[38]

As of 2012, when the U.S. Department of Agriculture last published its Census of Agriculture, roughly half of the country’s dairies have more than 1,000 cows,[39] and that number is likely to have increased due to evidence that dairy farms with 1,500 or more cows are more profitable.[40] Large dairies in particular face challenges disposing of vast amounts of waste. A 1,400-pound cow in freestall total confinement generates about 14 gallons of feces and urine each day; and together with milking wash wastes, the total waste is 2.5 cubic feet per cow per day.[41] A farm with 1,500 cows would generate 75 cubic yards (or 67.5 tons) of waste per day and 27,375 cubic yards (or 24,637.5 tons) of waste per year. The EPA estimates that a dairy farm with 2,500 cattle produces a similar waste load to a city with a population of 411,000.[42] This amount of waste is challenging to dispose of, and runoff from dairy farms contributes to water pollution caused by nitrogen, phosphorus, and E.coli.[43] Several dairy farms have been sued or issued citations for violating laws intended to protect the public health from dairy farm waste run off.[44] Many residents near large dairy farms complain about the odor.[45]

Transitioning toward more plant-based diets, including eliminating dairy product consumption, can reduce greenhouse gas emissions significantly while simultaneously increasing health.[46] Moreover, replacing dairy and other animal-derived foods with plant-based foods can significantly increase food security and food availability because plant-based replacement diets produce substantially more nutritionally similar food per acre of cropland.[47]

Some Consumers Do Not Consume or Limit Their Consumption of Dairy Products because They Belong to Religions that Restrict or Prohibit the Consumption of Animal-Derived Foods

Some consumers avoid dairy at certain times for religious reasons. For example, the Orthodox Church in America prohibits consuming dairy and other animal products on Wednesdays and Fridays.[48] The Orthodox Ethiopian Church’s followers engage in a 40-day vegan fast prior to Christmas.[49] And other religions prohibit the consumption of dairy during religious fasts.[50] Some consumers avoid dairy and/or other animal products at all times because doing so is consistent with their religious ideals, even if their religion does not require it.[51] For such consumers, accidentally eating an animal-derived product can result in emotional stress and the guilt of committing a sin.[52]

Some Consumers, Vegans, Do Not Consume Dairy Products because They Have a Moral Conviction that it Is Unjust for Humans to Exploit Non-Human Animals

A significant number of Americans are vegans or vegetarians. According to a 2018 Gallup poll, five percent of Americans report being vegetarians, while three percent report being vegan.[53] The percentage of Americans that are vegans falls between the percentage of Americans who keep a kosher diet[54] and the percentage of Americans who have food allergies[55] — two groups whose interests are currently recognized by food labeling laws.[56]

Vegetarians do not eat foods that consist of or have been prepared with products consisting of the flesh of a living or dead animal (including farmed, wild or domestic animals, such as “livestock poultry, game, fish, shellfish, crustacea, amphibians, tunicates, echinoderms, molluscs and insects”).[57] Ovo-vegetarians do not consume dairy products in addition to other foods vegetarians avoid.[58] Vegans (sometimes referred to as “strict vegetarians” or “pure vegetarians”) abstain from eating food products derived from animals, using other animal-derived products such as leather and wool fabrics, using products tested on animals, and engaging in other practices involving the exploitation of non-human animals as far as is practicable.[59] Although the popularity of veganism has increased in recent years, the practice is nothing new. The original use of the word “vegetarian” in the 1830s had the same meaning as the word “vegan” today; in 1847 the term vegetarian expanded to include persons who consumed dairy and/or eggs.[60] In the 1940s, the term “vegan” was coined.[61] (In addition to referring to a person who follows a certain lifestyle, the term “vegan” also refers to foods that are suitable for vegans.)

Although there are various reasons why people abstain from animal products, moral beliefs are one of the leading motives for adopting vegetarian or vegan diets.[62] The moral beliefs that motivate people to choose a vegan lifestyle may be informed by traditional religious principles[63] or other philosophies, theories, and social justice activism.[64] Some vegans believe that human beings should protect animals from harm (including harm inherent in farming them) as they would protect other innocents;[65] some vegans believe that it is unjust to exploit non-human animals because non-human animals have an inherent right to respect, just as human beings have an inherent right to respect;[66] some vegans are influenced by other philosophies[67] or a mix.

For some ethical vegans, consuming milk from animals and other dairy products is inconsistent with the ethics they uphold at every meal and in all aspects of their lives—learning that they have consumed animal products “can be disturbing and sickening”[68] and such consumers can be “devastated”[69] and “appalled.”[70]

Yet many vegetarians and vegans are routinely and unknowingly exposed to food products that violate their deeply held moral beliefs because there are currently no food labeling laws that require the disclosure of animal-derived ingredients.[71]

In the next section of this letter, we explain how the FDA can help consumers who seek plant-based replacements for dairy products make more informed decisions about the food products they buy.

WHAT IS CONSUMERS’ UNDERSTANDING OF THE AMOUNT OR PROPORTION OF PLANT-BASED INGREDIENT(S) RELATIVE TO OTHER INGREDIENTS IN PLANT-BASED PRODUCTS?

As explained above, consumers seeking to reduce, restrict or eliminate their consumption of animal-derived food products, including dairy products, deliberately do so for a variety of reasons, ranging from environmental concerns to deeply held moral convictions. The FDA should use this opportunity to promulgate regulations that help these consumers—a group that is comparable in size to or exceeds the number of consumers seeking kosher products or disclosures of food allergens.

The FDA can take steps that will both help consumers seeking or considering plant-based milks as a substitute for dairy milk and also address the dairy industry’s concerns that some consumers may not understand that plant-based milks are not, in fact, a type of cow’s milk. First, we recommend that the FDA promulgate a regulation requiring the disclosure of the proportion of plant-sourced ingredients to water in plant-based milks so that consumers can better compare dairy to non-dairy milks and compare non-dairy milks to other non-dairy milks. Second, we recommend that the FDA prohibit the use of the word “non-dairy” for a product unless that product actually contains no milk-derived products. And finally, the FDA should promulgate a regulation requiring manufacturers to disclose if their products contain an animal-derived ingredient.

Consumers of Plant-Based Milks Lack Information about the Proportion of Plant- Sourced Ingredients to Water to Compare and Make Informed Choices about Plant-Based Milks

Description of the problem

No existing food labeling requirements effectively help a consumer determine the ratio of plant-sourced ingredients to water and other ingredients in plant-based milk products. There are some guidelines in place: Most processed food products must contain ingredient lists on their food labels that list each ingredient in descending order of predominance by weight.[72] Water added in making a food must also be included.[73] However, even with these existing guidelines, there is no way for consumers to determine the ratio of plant-sourced ingredients to water and other ingredients in plant-based milks. Plant-based milk products almost never disclose the percentage or amount of the “plant source” (for almond milk, almonds; for soy milk, soy beans; etc.) actually contained in the product.[74]

There is evidence that the water content in these products varies significantly and impacts the quality of the product. Many consumers buy plant-based milks because of these milks’ perceived health benefits,[75] and some consumers opt for nut-based milks in particular because of studies showing a link between nut consumption and decreased risk of heart disease.[76] However, the potential health benefits of plant-based milks will vary significantly depending on how many servings of the “plant source” are included in a serving of the product.[77] For example, the nutritional profile of almond milk can vary greatly depending on its almond content. Blue Diamond, one of the most popular almond milk brands in the United States,[78] discloses that its U.K. “Almond Breeze” products contain 2% almonds.[79] Blue Diamond’s Unsweetened Almond Breeze in the U.K. contains 0.5 grams of protein and 13 calories per 100 mL serving.[80] By comparison, another almond milk brand, Elmhurst, advertises that its “Milked Almonds” products contain up to four times more nuts than other brands (though it does not disclose the percentage).[81] Elmhurst’s Unsweetened Milked Almonds contains 2 grams of protein and 54 calories per 100 mL—approximately four times the amount of protein and calories as Blue Diamond’s counterpart.[82]

Due to insufficient labeling requirements and the significant variation in content and quality among different products, it is nearly impossible for consumers to determine the proportion of plant-sourced ingredients to water and other ingredients in plant-based milk products and make an informed purchasing choice. In some instances, consumers may even be misled into thinking that a product contains significant amounts of a “plant source.” And indeed, the two leading almond milk manufacturers, Blue Diamond and WhiteWave Foods,[83] are the subjects of a class action lawsuit claiming that they misled consumers into thinking their products contain a significant amount of almonds and are heart healthy.[84] The plaintiffs allege that these companies are using depictions and labels[85] on their products and websites to mislead consumers into believing their products contain more almonds and have more health benefits than they actually do.[86] The action against Blue Diamond is currently stayed pending approval of a nationwide settlement agreement.[87]

Recommendation

To help consumers determine the ratio of plant-sourced ingredients to water and other ingredients in plant-based milk products, the FDA should implement labeling requirements for these products similar to existing juice label requirements, which require juice products to disclose the proportion of fruit or vegetable juice to other ingredients.[88]

Under juice labeling regulations, products that purport to contain fruit or vegetable juice—by way of label statements, pictures, or taste and appearance causing the consumer to expect juice in the beverage—must declare the percentage of juice contained in the product.[89] The percentage of juice declaration can take the form of “contains __% juice” or “__% juice.”[90] This label must be located near the top of the information panel, or, if the package does not contain an information panel, on the principal display panel,[91] and must meet size and legibility requirements.[92] The percentage of juice is calculated in two ways: (1) for juice expressed directly from fruits or vegetables, it is computed on a volume/volume basis,[93] and (2) for juice made by adding water to concentrate, manufacturers can calculate the percentage by using values from the Brix table in 21 C.F.R. § 101.30(h)(1).[94] Products that are diluted to less than 100% juice must have the word “juice” qualified with a term such as “beverage,” “drink,” “cocktail,” or “diluted.”[95]

For plant-based milk products, a similar labeling regime to the above can be implemented. Plant-based milk products generally fall into the following categories: nut-based products (e.g., almond milk, cashew milk), legume-based products (e.g., soy milk, pea milk), seed-based products (e.g., hemp milk, flax milk), and grain-based products (e.g., oat milk, rice milk).[96] The following are suggestions for how the juice label requirements can be adopted and modified for plant-based milk products.

Purporting to be a plant-based milk product. Products purport to be plant-based milk products if their packaging contains label statements, pictures, or taste and appearance causing the consumer to expect the product to contain significant amounts of a “plant source” (again, for almond milk, almonds; for soy milk, soy beans; and so on).

• Proportion declaration. Plant-based milk products can declare the proportion of “plant source” ingredients to water and other ingredients with a percentage declaration (e.g., “__% almonds”[97]) or, for products where it is practicable to do so,[98] the number of the “plant source” ingredient contained in a serving (e.g., “__ almonds per serving”[99]).
• Location and legibility requirements of label. The proportion declaration for plant-based milk products can follow the location and legibility requirements for juice labels, described above. Percentage declarations can also be listed in the ingredients section of the nutrition label (e.g., “Almonds (__%)”).[100]
• Calculation of proportion. Plant-based milk products are generally made by blending solid ingredients, such as nuts, legumes, seeds, or grains, with water and other ingredients.[101] The proportion of “solids” to water and other ingredients can be calculated by dividing the weight of “plant source” ingredients by the total weight of the product.
• Qualifiers or disclaimers for excessively diluted products. Products that fail to meet a minimum percentage of a “plant source” ingredient can be required to attach qualifiers to the product name, such as “beverage” or “drink” (e.g., “Almondmilk Beverage”). These products can also be required to include a visible disclaimer on the packaging, such as “Does not contain a significant amount of almonds.”

Consumers of Plant-Based Milks and Other Products Lack Information about Ingredients Necessary to Determine if a Product Contains Animal-Derived Products

Description of the problem

Most food products must contain ingredient lists on their food labels that include most ingredients in descending order of predominance by weight.[102] In addition, food labels must disclose certain allergens, including milk, egg, fish, Crustacean shellfish, tree nuts, wheat, peanuts, and soybeans.[103] Although these laws, along with voluntary vegan certification programs,[104] help consumers determine if there are animal-derived ingredients in food products, there are three deficiencies in the current labeling laws that are problematic for consumers seeking plant-based foods: (1) some products are labeled “non-dairy” yet include ingredients derived from cow’s milk; (2) some ingredients may be derived from either plant, synthetic, or animal sources and labels do not disclose the source; and (3) details about some flavorings and colors, which may be derived from animals, need not be disclosed. In addition, (4) the existing voluntary program for vegan certification is inadequate.

As a result, in some cases consumers cannot be completely sure if a plant-based dairy replacement product actually lacks products derived from animals without looking beyond the ingredient label.

Some products are labeled “non-dairy” but do include ingredients derived from cow’s milk

Several products, like non-dairy creamers and cheese alternatives, are advertised as “non-dairy” or “cheese alternatives” but upon closer inspection, the product label states that they contain products sourced from cow’s milk.[105] The FDA allows this practice and in fact requires products labeled as non-dairy that contain caseinate to include an explanatory parenthetical in the ingredient list such as “caseinate (a milk derivative).”[106] Even so, some consumers seeking dairy-free foods may be confused about such labels, reasonably interpreting the phrase “non-dairy” to mean that the product does not contain dairy and, in reliance on such statement, fail to read the ingredient list.[107]

And that confusion is well founded. Many foods that do not contain any dairy also call themselves “non-dairy.” For example, Pacific Foods calls a dairy milk alternative product, “Non-Dairy Beverage”[108] and Häagen-Dazs calls a non-dairy ice cream alternative product “Non-Dairy Frozen Dessert.”[109] Neither of these products contain milk.

Some ingredients may be derived from either plant, synthetic, or animal sources and labels do not disclose the source

Common food ingredients and additives that may come from plant-based, synthetic, or animal sources include, but are not limited to, lactic acid, glycerin/glycerine/glycerol, lecithin, gelatin, rennet, capric acid (decanoic acid), disodium inosinate, diglyceride, monglycerides, diglycerides polysorbate disodium inosinate, cystine, sodium stearoyl lactylate, enzymes, clarifying agents, and emulsifiers.[110] These ingredients have such unfamiliar names that consumers are likely to be unaware that they may come from animal sources. We discuss a couple of these ingredients that are found in some plant-based dairy alternatives below.

Lactic acid is considered “the most important bacteria in desirable food fermentations” and is used in products such as sourdough bread, fermented foods and beverages, fermented milks, and fermented vegetables.[111] Lactic acid bacteria (which produces lactic acid) is naturally present in cow’s milk, but lactic acid has also been derived from soymilk since as early as 1934 when Kellogg prepared a fermented product using a lactic culture in soymilk.[112] Some plant-based alternatives to dairy products contain lactic acid, but sometimes it can be difficult to discern whether it is derived from cow’s milk or a plant source. For example, a popular butter alternative contains lactic acid, but the label does not disclose the source.[113] Some plant-based alternatives to dairy products that contain lactic acid do state the source in the ingredient list as “Lactic Acid (Plant Based),”[114] “Lactic Acid (Non Dairy),”[115] and “Non-Dairy Lactic Acid.”[116] The presence of lactic acid in ingredient labels has been a source of confusion for many consumers who wish to avoid animal products, as evidenced by posts on message boards.[117]

As another example, glycerin (also called glycerine or glycerol) is a sugar alcohol used in processed foods as “a humectant (wetting agent), thickener, solvent or sweetener to dairy products (cream), canned goods, confections, fondant, processed fruits, jams, energy bars and other foods.”[118] Glycerin can be produced from animal, plant, or synthetic sources and most food labels do not reveal the source.[119] A sample of non-dairy ice cream packages indicates that the source of glycerin in the product is “vegetable glycerin”;[120] but this may be because they are specifically marketed to consumers choosing plant-based products.

As explained above, the consumption of animal-derived products even in trace amounts, such as the beef tallow formerly used in McDonald’s French Fries, can be problematic for many consumers.

Details about natural flavorings, which may be derived from animals, need not be disclosed on product labels

Although generally ingredients must be listed on product labels, the FDA allows some ingredients to be listed as “flavors” without listing each one.[121] A “natural flavoring” may come from a plant or animal source, under the definition in the FDA regulations:

the essential oil, oleoresin, essence or extractive, protein hydrolysate, distillate, or any product of roasting, heating or enzymolysis, which contains the flavoring constituents derived from a spice, fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant material, meat, seafood, poultry, eggs, dairy products, or fermentation products thereof, whose significant function in food is flavoring rather than nutritional.[122]

There is no way a consumer can determine if an ingredient listed as a “natural flavoring” contains an animal-derived ingredient from reading the product label. And many animal ingredients are covered under the catchall term “natural flavoring(s).”[123]

The existing voluntary certification program for vegan foods is inadequate

The United Kingdom Food Standards Agency issued guidance stating, “the term ‘vegan’ should not be applied to foods that are or made from or with the aid of animals or animal products (including products from living animals).”[124] The European Union plans to pass a law concerning the labeling of vegan and vegetarian products in 2019.[125] But there is no such guidance in the United States, which in turn creates confusion.

In particular, the existing, voluntary certification program for vegan foods is confusing and inadequate. There are several organizations that provide third-party vegan certification for food products sold in the United States. These programs license their vegan trademark symbols for use on products that have been certified by their organizations. A description of the certifications of three such leading programs is included in Appendix A. These certifications are similar: They require that no animal-derived ingredients be included in products, that no animal parts be used in food processing, that steps be taken to limit cross contamination with animal products, and they limit GMOs in products.

But manufacturers also make claims about their products and include their own vegan symbols on product labels that look somewhat like the vegan symbols used by certifying organizations.[126] Or they claim on labels that their product is vegan. This may be because third-party certification is an added cost. Some product manufacturers have websites that explain the meanings of their vegan labels.[127] For example, information about the Whole Foods Private Label products’ vegan symbol found on its website is included in Appendix A. But over a dozen vegan logos on products are licensed stock images and cannot be traced to a website explaining their meaning.[128]

The problem is that there is no uniform definition of what a vegan food product is. If a product is certified vegan, a consumer can go to the certifying organizations’ website to learn the meaning of the certification. But if a product bears a vegan logo created by the manufacturer or a licensed stock image, the consumer will often be in the dark about what that means as they “may receive inadequate or inaccurate information when contacting a company, by email or phone, to determine if product is suitable.”[129]

Recommendation 1

The FDA should not allow products that contain any dairy milk derivatives to call themselves “non-dairy.” As explained above, many vegan products that are dairy alternatives call themselves something like “non-dairy beverage” or “non-dairy frozen dessert.” And while there is no credible evidence that reasonable consumers who purchase plant-based milk products mistake them for milk from cows,[130] reasonable consumers are confused about the term “non-dairy,” as illustrated above, and the term is inappropriate for products containing dairy.

Recommendation 2

The FDA should require product labels, including those of dairy and non-dairy milks, to disclose if the product is or is not made from or with the aid of animals or animal products. An effective regulation would (1) define what an animal is (we recommend the broad, simple definition used by the Vegan Society, “all vertebrates and all multicellular invertebrates,” see Appendix A) and (2) include the phrase “animal-derived ingredients or processing” near the allergen disclosure. Although this requirement would help alleviate confusion concerning non-dairy alternatives, it would apply to all foods. It would not be limited to dairy and dairy alternatives.

This approach is preferable to an alternative approach suggested by some writers and consumers: requiring or encouraging products without animal-derived ingredients to label themselves vegan.[131] Some product manufacturers may be concerned about alienating some of their customers if they include a vegan label on their products.[132] Some consumers think that a vegan label means the product does not taste good.[133]

PROHIBITING PLANT-BASED MILKS FROM USING THE TERM “MILK” IN THEIR PRODUCT NAMES IS INAPPROPRIATE

Finally, although the FDA does not directly request information on whether plant-based milks should be prohibited from using the term “milk” in their product names—as some representatives of Congress have requested[134]—we consider such a drastic step inappropriate. As noted above, reasonable consumers purchasing plant-based milk products do not mistake such products for milk from cows.[135] In addition, the history of the regulation defining the standard of identity of milk shows that it was established to address the rampant adulteration of dairy milk products occurring in the early 20th Century that harmed consumers who wished to purchase cows’ milk, not to “preclude or hinder the marketing of truthfully labeled new variations or new foods.”[136] Because consumers are buying plant-based alternatives instead of milk because they want to, banning the word “milk” on such product labels is not likely to make dairy milk more attractive to such consumers.

Further reasons against prohibiting the term “milk” for plant-based milks are outlined in our prior comment to Congress opposing the DAIRY PRIDE Act. A copy of that comment is attached in Appendix B.

*          *          *

Thank you for considering our comments.

Respectfully,

Christopher Wlach
Chair, Animal Law Committee

cc:

Senate Agriculture Committee:
Pat Roberts, Chair
Debbie Stabenow, Ranking Member

House Agriculture Committee:
K. Michael Conway, Chair
Collin C. Peterson, Ranking Member

DAIRY PRIDE Act sponsors:
Sen. Tammy Baldwin
Rep. Peter Welch

Congressional Animal Protection Caucus:
Rep. Earl Blumenauer, Co-Chair
Rep. Vern Buchanan, Co-Chair

U.S. Congressional Delegations from New York:
Rep. Yvette Clarke
Rep. Chris Collins
Rep. Joseph Crowley
Rep. Dan Donovan
Rep. Eliot Engel
Rep. Adriano Espaillat
Rep. John Faso
Sen. Kirsten E. Gillibrand
Rep. Brian Higgins
Rep. Hakeem Jeffries
Rep. John Katko
Rep. Peter King
Rep. Nita Lowey
Rep. Carolyn Maloney
Rep. Sean Maloney
Rep. Joe Morelle
Rep. Gregory Meeks
Rep. Grace Meng
Rep. Jerrold Nadler
Rep. Kathleen Rice
Rep. Tom Reed
Sen. Charles E. Schumer
Rep. José Serrano
Rep. Elise M. Stefanik
Rep. Thomas Suozzi
Rep. Claudia Tenney
Rep. Paul Tonko
Rep. Nydia Velázquez
Rep. Lee Zeldin