April 24, 2023Clinic Submits Further Comment on FDA Labeling of Plant-Based Milk Alternatives

Animal Law & Policy Clinic submits a response to the FDA’s recent guidance on milk labelling during its 60-day public comment period

On April 24, Harvard’s Animal Law & Policy Clinic submitted a response to the Food and Drug Administration’s recent guidance on the labeling of plant-based milk alternatives. In its comments, the Clinic commended the agency for its decision to allow plant-based milk to be labeled as “milk” and suggested an alternative approach to its recommendations for voluntary packaging statements that would provide even greater transparency for consumers.

The comments prepared by the Clinic’s Regulatory Policy Fellow Kelley McGill state: “ALPC applauds FDA for clarifying that producers may include comparative nutrient claims on product labels that are truthful and not misleading. In light, however, of the nutritional differences across different types and brands of fluid milk from cows, ALPC recommends that FDA suggest, as an alternative to voluntary nutrient statements, that any food product label using the term “milk” in its statement of identity include an expanded Nutrition Facts label that provides compositional information for nutrients of public health concern commonly found in fluid milk from cows.”

As the Clinic’s response further explains, research indicates that consumers already use the Nutrition Facts label when making food product purchase and consumption decisions. By suggesting the inclusion of information regarding additional nutrients on the Nutrition Facts label for products labeled with the term “milk,” the FDA would help ensure that producers provide consumers with sufficient information to make informed purchasing decisions and to compare nutritional levels across different products that may be used in similar ways.

In September 2018 that FDA requested information on the labeling of plant-based milk alternatives with terms that include the names of dairy foods such as “milk”–a move that worried many producers of plant-based products. At the subsequent public hearing in 2019 McGill ’20 and Gabriel Wildgen ’20, who were then student clinicians, urged the FDA to continue allowing food labels to use standardized terms, such as milk, and each repeatedly returned to the lectern to rebut the arguments of dairy industry representatives. Both McGill and Wildgen also worked on the Clinic’s detailed 10-page comment submitted to the FDA.

In that submission, the Clinic demonstrated that consumers are not confused by plant-based milk alternatives being called milk, contrary to dairy industry claims, and also argued that appropriately qualified food labels are a form of commercial speech protected under the First Amendment.

After reviewing 13,000 public comments on the issue, the FDA now agrees–determining not only that consumers generally understand plant-based milk alternatives are not cow’s milk, but further that the public purchases those products precisely because they do not contain dairy. Indeed, last year the USDA reported that US per capita consumption of cow’s milk has dropped by nearly 50% since 1970.

The FDA accepted public comments, such as those the Clinic submitted, on this guidance for 60 days following the announcement of its draft guidance and will now finalize its terms. This guidance does not apply to other plant-based dairy alternatives, such as plant-based cheese or yogurt alternatives. On that topic, the agency has stated it “is in the process of developing recommendations on the labeling of other plant-based products and will communicate further updates when available.”