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One of the dairy cows on Joseph Zaiger's farm near Athens, Wis., grazes in June 2016. (Milwaukee Journal Sentinel/Michael Sears) One of the dairy cows on Joseph Zaiger's farm near Athens, Wis., grazes in June 2016. (Milwaukee Journal Sentinel/Michael Sears)

One of the dairy cows on Joseph Zaiger's farm near Athens, Wis., grazes in June 2016. (Milwaukee Journal Sentinel/Michael Sears)

By Dave Umhoefer January 27, 2017

Is labeling imitation dairy products milk or cheese or yogurt 'against the law'?

Hostilities between the dairy industry and its competitors are flaring anew as alternatives to cow’s milk take up more space in the dairy case.

That means the politicians can’t be far behind.

U.S. Sen. Tammy Baldwin, a Wisconsin Democrat, spoke up Jan. 12, 2017 in a news release lauding herself as somebody who "stands up for Wisconsin dairy farmers."

Baldwin wants Congress to pass the Dairy PRIDE Act -- officially known (at least to a few) as the "Defending Against Imitations and Replacements of Yogurt, milk, and cheese to Promote Regular Intake of Dairy Everyday Act."

After two years of falling milk prices, she and other federal lawmakers want the U.S. Food and Drug Administration to enforce consumer regulations defining "milk."

Is Baldwin right that imitation dairy products -- for instance, soy milk -- often differ nutritionally from dairy item? And is labeling them "milk" or "cheese" or "yogurt" against the law?

To back that up, Baldwin’s office pointed us to nutritional labels, and to FDA regulations that plainly state: "Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows."

'Against the law'

To dairy officials, inclusion of the word "milk" on non-dairy products is a misappropriation of the popularity of cow’s milk. But competitors say coconut milk and soy milk have long histories and aren’t confused with dairy. What’s more, they note, the FDA doesn’t punish "peanut butter" for using the dairy term "butter."

But the FDA in 2008 and 2012 did tell two makers of drinks labeled "soy milk" that under its regulations, such labeling was inappropriate because the products did not contain "milk" as defined by the agency.

"Soy drink" or "Soy beverage" would be better, the agency said at the time.

That -- and regulatory language allowing the FDA to declare a product misbranded and try to block its sale -- help Baldwin’s case. Federal regulations are part of the United States Code that is the law of the land.

But to the frustration of the dairy industry, the agency has not consistently enforced that line of reasoning, allowing use of "soy milk" and "almond milk" and many others.

Rebecca Cross, a San Francisco-based regulatory lawyer for food product companies, said the FDA may be viewing labels on a case-by-case basis and allowing use of dairy terms on plant-based products so long as the use is not misleading.

Nathan Beaver, a food and drug lawyer with Foley & Lardner in Washington, D.C., explained that foods such as soy milk that have no FDA-written "standard of identity" must choose a "common or usual" name for their products.

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Courts, though, have jurisdiction over disputes on the issue and therefore get final say on the meaning of the FDA rules.

On milk, courts so far have found that cow’s milk competitors are not misbranded if their names don’t confuse consumers, said Cross.

The nutrition comparison

Dairy alternatives, Baldwin said, "contain a range of ingredients and nutrients that are often not equivalent to the nutrition content of dairy products."

This is a bit tricky to evaluate given that beverages labeled as some kind of "milk" now come from such diverse sources as soy, almonds, cashews, hemp, rice, oats, coconut and sunflowers.

For help, we turned to Vandana Sheth, a registered dietician and spokesperson for the Academy of Nutrition and Dietetics, a leading organization of food and nutrition professionals.

For starters, Sheth noted that dairy products can be a good source of calcium, vitamin D, protein and other essential nutrients.

Soy milk provides close to the same amount of protein as cow’s milk. Rice milk typically provides minimal protein and is higher in carbohydrates. Almond milk is usually quite low in protein and also less calorically dense, she said.

Plant protein tends to be of a lower quality than dairy proteins, though soy is close, said John Lucey, a food scientist who directs the Center for Dairy Research at the University of Wisconsin-Madison.

Our own review of labels found that soy and almond beverages, like cow’s milk, are all relatively low calorie, low carbohydrate, low sodium drinks. They are all heavy with calcium.

But they feature a different mix of vitamins and minerals, and fat content. Examples: soy milk has a lot of folate, while cow’s milk typically has none; cow’s milk contains some Vitamin C, but the soy, almond and hemp drinks we examined have none.

Almond and soy milks feature some iron and fiber -- nutrients typically not found in cow’s milk.

"All the products profile differently," said Susan Levin, a registered dietitian and director of nutrition education for the Washington, D.C.-based Physicians Committee for Responsible Medicine.

Bottom line: Baldwin’s nutrition observation is on target, based on a comparison of milk products.

Our rating

Baldwin claimed that imitation dairy products made from plants often differ nutritionally from the real thing, and labeling them "milk" or "cheese" or "yogurt" is "against the law."

The nutrition point is accurate, and the legal point is partially so.

Overall we rate her claim Mostly True.

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Politifact rating logo Politifact Rating:
Imitation dairy products often differ nutritionally from those they mimic, and labeling them "milk" or "cheese" or "yogurt" is "against the law."
In a news release
Thursday, January 12, 2017

Our Sources

Press release from office of Senator Tammy Baldwin, Jan. 12, 2017

Interview with Vandana Sheth, spokesperson for the Academy of Nutrition and Dietetics, Jan. 23, 2017

Interview with Rebecca Cross, lawyer, Davis Wright Tremaine LLP, Jan. 25, 2017

Interview with Dr John A Lucey, director of UW-Madison’s Center for Dairy Research, Jan. 23, 2017

Interview with Susan Levin, director of nutrition education, Physicians Committee for Responsible Medicine, Jan. 24, 2017

Interview with Mark Kennedy, vice president of legal affairs, Physicians Committee for Responsible Medicine, Jan. 25, 2017

Interview with Nathan Beaver, partner, Foley & Lardner LLP

Interview with Deborah Kotz, press officer, Office of Media Affairs, Office of External Affairs, U.S. Food and Drug Administration, Jan. 19, 2017

Interview with Bill Neidhardt, press secretary, Sen. Tammy Baldwin, Jan. 12, 2017

Electronic Code of Federal Regulation, Food and Drugs section




 

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