Urging FDA Not to Require Plant-Based Milk Comparison Nutrient Statement

On April 24, 2023, the Animal Legal Defense Fund submitted comments to the Food and Drug Administration (FDA) urging the agency to remove its unprecedented “voluntary nutrient statement” from its draft guidance on the labeling of plant-based milks.

The comments note FDA has finally acknowledged the status quo by confirming that plant-based milk producers can label and market their products using the widespread and deeply understood naming conventions they have used for decades — using the term “milk” when preceded by a qualifier, like soy, almond, or oat. However, the comments also assert FDA is departing not only from the status quo, but also from longstanding labeling law, by recommending that plant-based milk producers add a statement to the front panel of their products comparing their nutritional content to cow’s milk — a direct market competitor that constitutes a recognizably separate and distinct product.

Of the countless similarly situated examples on the market, FDA has never before required or recommended competing, but fundamentally different, products to make comparative nutrient statements on their packaging. For example, FDA wouldn’t think of telling peanut butter producers to disclose on the front of their packages that their products contain less vitamin E, iron, and seven times less calcium than almond butter. Likewise, FDA has never thought of instructing traditional wheat-based pasta producers to flag the fact that their products contain only half the protein and a quarter of the fiber (but more carbohydrates) than chickpea-based pasta. However, FDA has, for no legitimate reason, imposed these burdens on plant-based milk producers.

This new supposedly “voluntary” nutritional disclosure discriminates against one sector to favor a competing sector. In doing so it disregards health science, runs contrary to consumer studies, and contradicts decades of FDA policy on nutrition labeling.

Despite its characterization as “voluntary,” FDA’s recommended nutrient statement comparing plant-based milk to its market competitor will, if finalized, have a very real effect on the market for plant-based dairy products. FDA is well aware that its guidance for industry documents are taken seriously and are generally adhered to by the industry. In part, this is because courts have used FDA’s guidance for industry as persuasive authority and have in some cases found such guidance to be practically binding upon industry in spite of the agency’s use of boilerplate ‘non-binding’ language.

The FDA issued, for comment, its draft guidance on February 22, 2023.

What action has been taken? The comments were submitted to the FDA asking the agency to remove its unprecedented “voluntary nutrient statement” from its draft guidance on the labeling of plant-based milks.

Why this case is important: The FDA’s draft guidance oversteps the agency’s statutory mandate and diverges from all past practices by forcing competing products to provide comparisons on their front labels. The products involved are fundamentally different, and consumers seek out plant-based milks thanks to those differences. The draft guidance interferes with competition by attempting to give preferential treatment to the dairy industry with additional unnecessary and biased nutrient labeling that runs contrary to law.