On February 22^nd, 2023, the U.S. Food and Drug Administration (the “FDA”) issued draft labeling guidelines for manufacturers of plant-based milk products, which it refers to as “Plant-based Milk Alternatives” or PBMAs. These draft guidelines are a long-awaited development in the contentious labeling battle between plant-based companies and the meat and dairy industries. The guidelines may not have been worth the wait, however, as their bold recommendations are already facing pushback from both sides.

The plant-based food market has grown exponentially over the past decade, with increasingly widespread availability of meat and dairy alternatives in grocery stores, restaurants, and fast-food chains alike. The industry is only expected to keep growing—with its global value predicted to reach $162 billion by 2030. In fact, the U.S. Department of Agriculture recently sought comment on a rule proposal that includes a provision for increasing the PBMA options available through the federal Supplemental Nutrition Program for Women, Infants, and Children. Additionally, the plant-based food market has expanded beyond companies that solely sell plant-based products, such as Oatly, with more traditional companies like Nestlé now incorporating plant-based offerings in their line-ups.

While many consumers and companies have rejoiced in the plant-based industry’s rapid and likely continued growth, not everyone is pleased with these developments. Notably, there has been resistance from the meat and dairy industries. This has manifested in part through numerous legal challenges to plant-based companies’ labeling practices. In particular, at the behest of the meat and dairy lobbies, states have passed statutes targeting plant-based companies’ practice of including words traditionally associated with animal-derived products, such as “burger” or “milk,” on their labels.

Proponents of removing conventionally animal-related words from plant-based labels argue that states have an interest in avoiding consumer confusion. For instance, an unsuspecting consumer might purchase an item labeled “coconut milk” under the mistaken belief that they are buying coconut-flavored cow’s milk, which would have different nutritional content. Restricting the term “milk” to animal products is also arguably consistent with the FDA’s “Standards of Identity” for milk. Standards of Identity were developed to protect consumers by ensuring that products can only be labeled in certain ways if they contain a particular ingredient or proportion of ingredients. For example, a product labeled as “peanut butter” must contain a minimum percentage of peanuts. The Standard of Identity for milk specifically defines milk as the “lacteal secretion . . . obtained by the complete milking of one or more healthy cows.” And, as the former FDA commissioner Dr. Scott Gottleib bluntly put it: “[A]n almond doesn’t lactate.”

Plant-based companies have primarily challenged labeling restrictions on First Amendment grounds, arguing that the statutes unconstitutionally chill their right to freedom of speech. These companies assert that their labels do not cause customer confusion in large part because they typically contain modifying terms or phrases that clearly identify the product as being made from plants. For instance, in Turtle Island Foods, SPC v. Thompson, Tofurky noted that all of its products “include modifiers like ‘vegetarian,’ ‘veggie,’ and ‘all vegan.’” Therefore, because the labels are clear and do not actually create a risk of customer confusion, the State does not have a sufficient interest in restricting the companies’ commercial speech to justify its suppression under the First Amendment.

Both plant-based companies and their opponents have won respective cases in different states. In Miyoko’s Kitchen v. Ross, for example, the Northern District of California upheld Miyoko’s right to label its vegan product as “butter.” The court relied in large part on an empirical study that concluded that consumers could accurately identify the sources of plant-based milks 88% of the time—more often than they could identify the source of animal-derived milks. The court also acknowledged that language evolves over time and noted that “old federal food definitions” are not “faithful indicators of present-day linguistic norms.” In contrast, in Upton’s Naturals Co. v. Stitt, the Western District of Oklahoma determined that plant-based labels that included words such as “bacon” or “meatball” were sufficiently likely to mislead consumers to warrant restriction. The court concluded that placing the word “vegan” on the label was insufficient to mitigate the potential confusion and that such clarifying words must instead be “uniform in size and prominence to the product name.”

The FDA’s current proposed guidelines provide a long-awaited federal weigh-in on the issue of plant-based milk labeling. While the draft guidance is not legally binding, companies “often interpret guidance in a similar manner to binding FDA regulations” and put themselves at risk of lawsuits if they disregard it. According to FDA Commissioner Robert M. Califf, M.D., the guidelines were developed to “address the significant increase in [PBMA] products” in “the past decade,” and to provide clarity for consumers. However, the proposed guidelines are already causing a stir due to a bold recommendation that companies that use the word “milk” on their labels—appropriately modified with the plant-based source—should “bear an additional nutrient statement on the product label describing how it is nutritionally different” from cow’s milk.

The FDA’s proposal is concerning on several fronts. For one, it establishes a standard that places a hefty burden on plant-based milk while not requiring dairy milk companies to provide similar nutritional comparisons between their products, such as 2% versus whole milk. Furthermore, attorney Nigel Barrella notes that plant-based milk producers are “being asked to tacitly endorse a government (and dairy industry) message they object to—that bovine milk is some gold standard for human health, and any alternative that has less of a single nutrient is something to be concerned about.” The promotion of dairy products and unequal imposition on plant-based companies is also contrary to the nation’s goal of combatting climate change given that cow’s milk production is a major source of greenhouse gas emissions.

Thus, while the FDA’s proposed guidelines feel like a victory for the plant-based milk industry in one sense—that these companies can use the term “milk” on their labels—it is arguably “something of a Pyrrhic victory” as companies are effectively being dissuaded from using the term to avoid including comparisons to cow’s milk on their labels.

The FDA’s proposed guidelines are open for comment through April 24^th, 2023.

Devan Daly is a second-year student at Wake Forest University, where she is enrolled in the dual J.D./M.A. in Sustainability program. Prior to law school, Devan received her B.A. in Environmental Studies from the University of Colorado Boulder. In her free time, she enjoys hiking, trying new cuisines, and spending time with her kitties, Basil and Professor.

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