Don't Cry Over Plant-Based Milk: Why the Use of the Term “Milk” on Non-Dairy Beverages Does Not Constitute “Misbranded” Under the Federal Food, Drug, and Cosmetic Act

Mancinelli, Michael 5/10/2020 For Educational Use Only DON'T CRY OVER PLANT-BASED MILK: WHY THE USE..., 14 J. Health &... 14 J. Health & Biomedical L. 481 Journal of Health & Biomedical Law 2018 Note Giuliana D'Esopo 1 Copyright © 2018 by Journal of Health & Biomedical Law; Giuliana D'Esopo DON'T CRY OVER PLANT-BASED MILK: WHY THE USE OF THE TERM “MILK” ON NON-DAIRY BEVERAGES DOES NOT CONSTITUTE “MISBRANDED” UNDER THE FEDERAL FOOD, DRUG, AND COSMETIC ACT Of course, the global economy couldn't very well function without this wall of ignorance and the indifference it breeds. This is why the American food industry and its international counterparts fight to keep their products from telling even the simplest stories ... about how they were produced. The more knowledge people have about the way their food is produced, the more likely it is that their values-and not just ‘value'- will inform their purchasing decisions. 2 I. Introduction In December of 2016, Congress launched an effort to prevent nondairy drink manufacturers from labeling their products as “milk.” 3 Thirty-two members of the House signed a letter to the Commissioner of the U.S. Food and Drug Administration (“FDA”) claiming that plant-based manufacturers are misleading consumers, and describing nondairy products as “unable to match the nutritional makeup of the product they mimic.” 4 Though dairy consumption has long played a role in society, drinking dairy milk is a fairly new practice beginning in the late nineteenth century. 5 As demand dictates supply, dairy farms became industrial businesses with federal approval to increase milk production by extraordinary means, including injecting cows with various genetically- *482 engineered growth hormones such as bovine growth hormone (“rBST” or “rBGH”). 6 Researchers have conducted various studies on the links of these hormones to prostate, colorectal, and breast cancer but these links are still largely unexplored. 7 While the scientific community still lacks certain agreement on various growth hormones' effects on human health, the professional opinions on the necessity of dairy milk largely agree that plant-based products are often better sources of nutrients found in dairy milk. 8 Due to vigorous advertising such as the “Got Milk?” marketing campaign including an advertisement featuring major league baseball player Cal Ripken Jr. with the caption, “[w]ith all the milk I drink, my name might as well be Calcium Ripken, Jr.,” milk is perhaps best known for its association with bone health as a source of calcium and protein. 9 In clinical, longitudinal, retrospective, and cross-sectional studies, however, the consumption of dairy products has not shown “even a modestly consistent benefit” for young adult bone health. 10 Plant-based milks are free of animal fats, growth hormones, antibiotics, and lactose sugar, while also providing comparable levels of protein. 11 Nevertheless, in January of 2017, the Senate introduced the “Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese To Promote Regular Intake of Dairy Everyday Act” (“DAIRY PRIDE Act”), alleging that plant-based products “often *483 do not provide the same nutrition content as real © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Mancinelli, Michael 5/10/2020 For Educational Use Only DON'T CRY OVER PLANT-BASED MILK: WHY THE USE..., 14 J. Health &... milk ... derived from dairy cows.” 12 The Act cites data from the Dietary Guidelines, developed by a Committee that includes members with past or present ties to the dairy industry. 13 Further, the Senate introduced the Act only after a survey from Nielsen, a global information, data, and measurement company, revealed that plant-based product sales grew 250 percent, while dairy milk sales fell seven percent in 2015. 14 Despite these complaints of the dairy business suffering from the rise of plant- based manufacturers, milk giants are in fact investing in plant-based companies; for example, milk giant Dean Foods recently announced a minority stake and distribution deal in Good Karma Foods, a manufacturer of flaxseed-based milk alternatives. 15 This note will explore the evolution of dairy milk production into the industry it is today, compared to the rise of the nondairy competition. 16 This note will first examine the nutritional makeup of dairy milk, the research on dairy milk and the influence of such research on its labeling regulations, and the effects of milk product labeling on human health and perception. This note will investigate various Congressional enactments promoting dairy milk consumption such as the Dairy Production Stabilization Act of *484 1983. 17 Next, this note will compare the rise of plant-based milk and its financial impact on the dairy industry. 18 In analyzing whether plant-based manufacturers are misleading consumers, this note will discuss the dairy industry's own mislabeling and whether plant-based milks really are comparable to dairy milk in their constitution. The conclusion advocates for the continued labeling of plant-based drinks as “milk,” rather than the proposed requirement of labeling these drinks as “imitation milk.” II. The Evolution of Dairy Milk Production A. The Promotion of Milk's Nutritional Makeup by the FDA and the Dairy Industry The FDA regulates milk and is the main food safety inspection agency of the United States government. 19 The FDA began in 1862 as a scientific institution, but did not acquire regulatory functions until 1906 with the passage of the Pure Food and Drug Act prohibiting interstate commerce of misbranded food. 20 Since 1968, the FDA has been responsible for working with state and municipal milk control authorities to assure safe milk supplies. 21 The FDA currently defines “milk” as the “lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” 22 Though humans have been consuming dairy since as early as the fifth millennium B.C., dairy milk consumption did not amplify in the United States until the nineteenth century, as infant mortality rose in cities. 23 As a growing interest in nutrition emerged, so did the consumption of milk as a convenient source of protein, calcium, and vitamin B12. 24 *485 Pasteurization practices emerged in an attempt to make milk consumption safer, and in 1987, the FDA required the pasteurization of all milk to prevent the spread of dangerous bacteria in raw milk responsible for diseases such as tuberculosis. 25 Milk soon became known as a staple of the American diet, with the United States Department of Agriculture's (“USDA”) Dietary Guidelines consistently advocating for two to three daily servings of milk, yogurt, and cheese. 26 The USDA introduced the first Food Guide Pyramid in 1992, serving as the official guide for recommended daily serving sizes and recommending two to three daily servings of the milk, yogurt, and cheese group. 27 The USDA's protein foods group includes nuts, seeds, and “processed soy products.” 28 Variously processed forms of dairy milk as well as “calcium-fortified soymilk (soy beverage)” are also included in this group. 29 For those with lactose intolerance who are unable to digest lactose, the natural sugar found in milk, the FDA suggests drinking milk anyway so long as it is “lactose-free,” stating that *486 otherwise it may be necessary to take a dietary supplement with calcium to maintain bone health. 30 The dairy industry, like the FDA, is adamant about promoting the health benefits of dairy. 31 Dairy farmers created the National Dairy Council in 1915 for the purpose of promoting the consumption of milk. 32 The National Dairy Council describes milk's “unique nutrient package” of nine essential ingredients, including calcium, protein, and vitamins A, D, and B12. 33 California dairy processors created the California Milk Processor Board in 1993 to increase milk consumption, largely through advertising campaigns such as the “got milk?” campaign beginning in 1995. 34 The importance of milk has been especially emphasized © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Mancinelli, Michael 5/10/2020 For Educational Use Only DON'T CRY OVER PLANT-BASED MILK: WHY THE USE..., 14 J. Health &... as a source of nutrients for infants unable to chew or digest solid foods, through advertisements such as those by milk giant Borden Dairy showing the tag line, “why more mothers choose Borden's Milk.” 35 B. The FDA's Approval of the Use of Genetically Altered Bovine Growth Hormone (“rBST” or “rBGH”) on Dairy Cows and Antibiotics to Mitigate Associated Health Problems Seen in Treated Cows Milk's increasing popularity led to the FDA's 1993 approval of genetically altered bovine growth hormone (“rBST” or “rBGH”), an engineered growth hormone injected into a lactating dairy cow to increase her milk production. 36 Cows supplemented with rBST require less feed per unit of milk produced, which is one reason the dairy industry considers rBST an efficient production tool. 37 Cows administered rBST show a ten to *487 twenty percent increase in milk production, which is why rBST is administered to approximately one-third of the United States' 9.39 million dairy cows. 38 Dairy companies mitigate the health risks in cows treated with rBST, namely a twenty-five percent increase in the frequency of udder infections, with antibiotics. 39 American farm animals consume twenty-eight million pounds of antibiotics per year; by comparison, Americans consume approximately seven million pounds of antibiotics per year to combat infection. 40 Additionally, a majority of antimicrobials used on farm animals are used nontherapeutically. 41 Due to concerns of developing resistance to antibiotics, in 1996, the FDA, USDA, and Center for Disease Control and Prevention (“CDC”) created a partnership called the National Antimicrobial Resistance Monitoring System to analyze drug-resistant pathogens and animal products, and publish its findings each year.

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