Faced with a barrage of reports showing consumption at record lows, the US Dairy Industry is now striking back in an attempt to enforce guidelines on what can and can’t be labeled as “milk” in an effort to stem the meteoric rise of plant-based dairy alternatives.

As the amount of fluid dairy that US consumers drink continues to fall each year and as consumption of plant-based dairy alternatives continues to skyrocket, Big Dairy has focused its attention on striking the word “milk” from plant-based dairy alternatives such as soy and almond milk. It has watched as plant-based milk has grown 61% in the last five years while dairy sales have slipped 15% according to Mintel and is looking to enforce FDA guidelines on the criteria for a product to be labeled as milk.

The FDA describes milk as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” That definition doesn’t leave room for vegan alternatives to call themselves “milk,” though a number of products on the market do.

“In the United States, ‘soymilk,’ ‘almondmilk,’ and ‘coconutmilk’ are the common and usual names for plant-based products under the current meaning of FDA regulation, and we communicate on our products with clear references,” said Michael Neuwirth, senior director of external communications for Danone North America, which owns non-dairy milk brand Silk.

At the recent Politico Pro Summit, FDA Commissioner Scott Gottlieb wondered if the “standards of identity” applied to milk were being sufficiently enforced. The summit piqued the interest of TVs The Late Show host, Stephen Colbert, who ridiculed the plan by the dairy industry and wondered aloud if the movie Milk would have to be changed to Inspiring Non-Dairy Sean Penn Product.

The battle between the dairy industry and plant-based milk substitute companies is no laughing matter, however. Dairy consumption among American families continues to fall at a rapid pace, yet milk production has grown. A 13% increase in milk production, according to the US department of Agriculture, in the last 10 years may not seem substantial but couple that with a 90% drop in per capita milk consumption over the last 65 years and it’s easy to see why the dairy industry is so afraid.

It is also facing a revolt by individual dairy farmers, especially in Wisconsin, where an estimated 650 family dairy farms have closed in the last 18 months according to the Milwaukee Journal Sentinel. The most striking statistic for small dairy farmers is that, according to Eco Watch, more than 50% of US milk is now produced by just 3% of the country’s dairies.

The dominance and growth of factory farming, where livestock tend to be kept in worse conditions than on factory farms, leads to an even further strain on the environment. It doesn’t help the dairy industry’s PR effort when, in a piece for National Dairy Month, they inserted under Fun Stats for National Dairy Month the fact that “a dairy cow eats between 90 and 100 pounds of food, and drinks about 35 gallons of water—about as much as a bathtub—every day.” As if that was a good thing.

The plant-based dairy industry is now striking back. Attorneys for the industry may invoke a First Amendment defense that the dairy industry has no trademark on the name “milk.” Companies own trademarks to their names and we have seen competitors to brands like Band-Aids and Kleenex have to leave those specific names off their product, but whether entire industries own the rights to a name remains to be seen.

A parallel that could be drawn would be the sugar alternative industry. Companies like Sweet’n Low, Equal, and Splenda are forbidden from labeling their product as sugar but they are allowed to use verbiage such as “sugar substitute” or “artificial sweetener.” As this debate continues to unfold it will be interesting to see if the makers of soy or almond milk have to go back to their respective drawing boards to devise a unique way to label their product. For example, does calling a non-dairy cheese product “cheeze” suffice or could the industry get away with simply rebranding a product Almond Mylk?

Recent legal controversies involving plant-based brand Just (formerly known as Hampton Creek) provide a window into what may be ahead for non-dairy milk companies. The company’s non-egg mayonnaise brand, Just Mayo, has run afoul of companies like Unilever, who claim Just cannot label a mayo-free product as “Just Mayo.” Ultimately, Just emerged victorious as Unilever was forced to drop its lawsuit. The company’s labeling critics also include the FDA and American Egg Board and, in an odd development, even Will Smith’s son Jaden, who declared in May that Just Mayo is too close of a trademark infringement to his Just Water brand.

Two of the main assertions that the plant-based dairy sector are sure to make in this battle is that consumers have become accustomed to seeing soy and almond non-dairy products labeled as milk for years now and also that labeling them as such isn’t going to confuse the average consumer. In addition, just because the FDA has guidelines on what can be called milk can it also lay claim to having a trademark on an entire industry? If the plant-based dairy industry is forced to settle who owns the term “milk” in court look for them to reference the Unilever-Just decision as Exhibit A.

We wonder what Harvey Mylk would think about all this.




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