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Sherry F. Colb

"Not Milk?": Dairy Petitions the FDA to Block Labels Like "Soy Milk" on Non-Dairy Products


Wednesday, May 12, 2010

At the end of April, the National Milk Producers Federation (NMPF) petitioned the Food and Drug Administration (FDA) to stop producers of non-dairy food from using terms such as "milk," "cheese," "ice-cream," "sour cream," and "yogurt" on their product labels. The NMPF characterizes such labeling as a misappropriation of "traditional dairy terms" and contends that "[f]ood labels should clearly and accurately identify the true nature of the food to the consumer. These companies should not be permitted to represent their products as something they are not."

The FDA has issued regulations that support the NMPF's view of words like "milk" and "cheese" and that define such products as essentially dairy in nature. Furthermore, according to the NMPF petition, the FDA has sent warning letters to producers of dairy-free products accusing them of misbranding food by labeling it with words identified with animal ingredients.

The FDA, in other words, appears to agree with the NMPF's contention that producers of dairy-free products mislead the public by using such words as "milk" and "cheese" in labeling.

In this column, I will examine the underlying contention that dairy-free milks including Wildwood Soymilk, Almond Breeze Almondmilk or Whole Foods Ricemilk, nondairy cheeses such as Daiya vegan shreds and Follow Your Heart Cream Cheese, and non-dairy ice-creams like So Delicious and Purely Decadent are engaged in misleading the public about the nature of their products.

Accuracy in Labeling: Lacteal Secretions

In its petition to the FDA, the NMPF emphasizes the importance of accuracy in labeling. The petition states that "[t]hese products [the ones that use "dairy terminology" in various incarnations] should be relabeled to more accurately describe the nature of the food . . ." A consumer interested in purchasing cows' milk, cheese, sour cream, or yogurt, in other words, should be able to understand, when she reads the label and the ingredients on a food product, precisely what she is – and what she is not – purchasing. Words that falsely connote dairy products thus risk confusing the consumer, according to the NMPF.

Whatever one thinks about dairy products, we should all share the NMPF's expressed desire that consumers (of dairy and other packaged items) fully and accurately understand the nature of the products that they consume. Most people are busy with their lives and cannot afford to spend time divining the origin of the ingredients in their food. Accuracy in labeling protects and justifies the trust of consumers, who may not have occasion to think much about what it is that they are purchasing and consuming when they visit the local grocery.

Though one will not likely encounter this precise definition on a container of dairy milk, the NMPF's petition explains that "the term 'milk' refers to the lacteal secretion from a mammal." The federal regulation defining "milk" states more narrowly that "[m]ilk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows." (Colostrum is the very early lacteal secretion that mammals produce for their newborn young; it has a different texture and appearance from milk).

Cows' milk, in other words, is the breast milk that a mother cow produces in her body when she gives birth to a baby calf. This is a familiar process, as human females – also mammals – produce milk when they give birth to baby humans. Unlike human babies who nurse with their mothers until their mothers are ready to wean them, however, the baby calf on a dairy farm is forcibly removed from his mother's side while he is still young enough to continue nursing, so that dairy farmers can allow the human population to drink and eat the mother's lacteal secretions. (Humans appear to be the only mammals who continue to drink breast milk into adulthood and who routinely feed, at any time in their lives, on the breast milk of a different animal.)

Consumers might rightly wonder what happens to the baby calf after he is taken from his mother. If he is a boy (and roughly half of a cow's babies are boys), he will be sold and slaughtered as veal. If she is a girl, then she will either become veal, like her brothers, or she will be raised to give birth to babies who are taken away from her, so that she too may be forced to provide "lacteal secretions" to satisfy the human population's demand for dairy products such as lacteal milk, lacteal cheese, lacteal yogurt, lacteal ice-cream, and lacteal sour-cream.

Once a farmer can no longer milk mother and daughter for the quantity of dairy that the populace demands, he considers these females "spent" and sends them to slaughter as well.

The wife of a former dairy farmer describes the cows' and their calves' experience as follows:

"I learned that dairy cows have to be bred every year in order to continue to produce milk, and how their calves are taken from them shortly after birth—they're lucky if they get colostrum from their mom, which is the first milk that is important for their survival. While some of the calves are kept as replacement heifers, most of them are sent to slaughter or the veal operations, which is a very short life, and not a happy life…. The verbalizations made by mother and baby as they bond are just one small aspect of their emotional lives that we humans tear apart. The mother calls for her baby for many days after they're separated. How can such a thing ever be called 'humane?'"

Dairy consumers ought to know these things when they purchase dairy milk and its derivatives, yet there is nothing on the labels that would give them a hint of it. This may be why some people who consider themselves "ethical vegetarians" still consume dairy products. It would be useful to have dairy items labeled to reflect the fate of their bovine producers.

Accuracy in Labeling: Nutritional Quality

When producers of dairy-free goods label their products with traditionally dairy titles, they – according to the NMPF – do so "in an effort to capitalize on the high degree of popularity and appreciation of nutritional quality that dairy products enjoy among consumers." This claim raises an important question: What, exactly, is the nutritional quality of dairy products?

One fact that the NMPF emphasizes in contrasting the quality of dairy products with that of their non-dairy analogues is protein. Dairy has more protein. "Specifically," explains the NMPF, "13 of the 15 soy beverages [listed in the petition] contained less protein than an equal amount of milk, and all of the 12 other non-dairy beverages contained less protein than milk." This disparity is worth examining, in the light of information we have about protein in dairy foods.

Cornell Professor Emeritus of Nutritional Biochemistry T. Colin Campbell has spent decades studying the impact of animal protein in general, and of dairy protein in particular, on health. Having grown up on a family dairy farm, Professor Campbell ultimately authored The China Study, which The New York Times said "can be considered the Grand Prix of Epidemiology".

Campbell had this to say on his web site about casein, the principle protein in dairy: "[C]asein is very likely the most relevant chemical carcinogen we consume."

The China Study outlines the role of animal protein generally and of the main dairy protein, casein, in particular in cancer, cardiovascular disease, and diabetes. Though dairy products may in fact contain more protein than their dairy-free analogues, then, this does not necessarily render lacteal secretion milk nutritionally superior to non-dairy substitutes. Indeed, Professor Campbell observes from his decades of epidemiological and experimental research that "[i]n effect, there are many reactions acting in a coordinated and mutually consistent way to cause disease when a diet high in animal protein is consumed."

The NMPF also expresses concerns about mineral deficiencies in those who avoid milk: "Recent research indicates that the diets of a significant proportion of the American population are lacking in essential nutrients, like calcium and potassium (which are present in high levels in dairy foods, with lower amounts in many non-dairy beverages), with less than 30% and 3% of the population consuming the recommended levels of these minerals, respectively."

The U.S. Department of Agriculture (USDA), however, had this to say about potassium consumption in its 2005 Dietary Guidelines: "Fruits and vegetables, which are rich in potassium with its bicarbonate precursors, favorably affect acid-base metabolism, which may reduce risk of kidney stones and bone loss. Potassium-rich fruits and vegetables include leafy green vegetables, fruit from vines, and root vegetables. Meat, milk, and cereal products also contain potassium, but may not have the same effect on acid-base metabolism."

According to one source, any one of the following foods actually has more potassium than a cup of 2% luteal-secretion-milk: 1 small banana, 1/2 cup cooked pinto beans, 1 cup tomato juice, 1 baked sweet potato with skin, ½ medium avocado, ½ medium potato with skin, 1 cup cubed cantaloupe or diced honeydew, or 1 tablespoon molasses.

The calcium picture is even more interesting. In The China Study, Professor Campbell wrote the following:

"Americans consume more cow's milk and its products per person than most populations in the world. So Americans should have wonderfully strong bones, right? Unfortunately not. A recent study showed that American women aged fifty and older have one of the highest rates of hip fractures in the world. The only countries with higher rates are in Europe and in the south Pacific (Australia and New Zealand) where they consume even more milk than the United States."

Why would that be, given that dairy milk really does have the high levels of calcium that the NMPF attributes to it? Campbell explains:

"[A]nimal protein, unlike plant protein, increases the acid load in the body. An increased acid load means that our blood and tissues become more acidic. The body does not like this acidic environment and begins to fight it. In order to neutralize the acid, the body uses calcium, which acts as a very effective base. This calcium, however, must come from somewhere. It ends up being pulled from the bones, and the calcium loss weakens them, putting them at greater risk for fracture."

Dairy milk, as the NMPF suggests, contains a large amount of protein, and the protein is – obviously – animal protein. This may account for the link that Campbell discusses between dairy consumption and diseases like osteoporosis that reflect a bone-calcium deficiency. Some calcium-rich plant-based foods are collard greens, almonds, tofu, chickpeas, tahini (sesame seeds), dried figs, and black-strap molasses.

Accordingly, one need not rely on "milk" of any sort to get calcium. In his book, Eat To Live, Dr. Joel Fuhrman, a widely-published medical doctor and nutrition specialist, explains that "[g]reen vegetables, beans, tofu, sesame seeds, and even oranges contain lots of usable calcium, without the problems associated with dairy."

Why Label Dairy-Free Products with the Words "Milk" or "Cheese"?

All of this information may leave us quite puzzled about why dairy-free industries would even want to use words like "milk," "cheese," "yogurt" or "sour cream" to label their products. The reality is that many consumers of dairy-free products specifically wish to avoid dairy.

Unlike a jeweler who might use the word "diamond" in a title to attract wannabe-diamond-owners to its less-expensive diamond imitations, non-dairy food producers – those who market to people who choose soy milk, Daiya cheddar strips, vegan cream cheese, and coconut-based ice-cream – plainly do not want to confuse their customers into believing that these items have dairy in them. Such confusion would hurt business as much as, for example, the impression that a food is non-Kosher would harm the business of a company that is specifically marketing Kosher products to the observant Jewish community.

What, then, is motivating companies to use traditionally dairy-related words in titling their alternative foods? I cannot speak on behalf of all producers or consumers, but I do have a hypothesis. Consumers who have decided, for ethical, environmental, or health (or for all of the above) reasons to stop eating dairy, most likely grew up eating and drinking cow-derived products. As creatures of habit, many people prefer to continue eating the same sorts of foods that they are used to eating. It is quite possibly this desire – reflecting a comfort in familiar experiences, rather than an attraction to the "nutritious and healthful image" of dairy products – that accounts for the use of the terms "milk," or "cheese," or other such language in the labeling of dairy-free foods.

Someone who is accustomed to pouring milk into her coffee or cereal will, once she becomes a vegan, probably want to continue pouring something that has a flavor and texture similar to that of milk into her coffee and cereal. Knowing about "soy milk," "almond milk," "hazelnut milk," and "rice milk" makes her transition simple: she tries the various options and selects the ones she likes best. The label "soy beverage" (as the NMPF recommends as a substitute for "soy milk"), by contrast, would do nothing to let her and other vegan consumers know that the soy product she is buying serves a similar function to that of the dairy milk they consumed in the past.

The same is true for such products as vegan cream cheese, which I can spread on a bagel or use to bake delicious rugelach, or vegan shredded cheddar by Daiya, which I can melt into fantastic quesadillas or grilled cheese or sprinkle onto my favorite vegan macaroni and cheese).

It is the possibility and ease of this transition that may, in fact, be worrying the dairy industry. As the NMPF petition says, "[t]hrough their packaging, labeling, and location in the refrigerated section, these products directly compete with and are marketed as substitutes for fluid milk and other traditional dairy products."

Exactly. And that is as it should be. People who decide to take dairy out of their lives ought to be able, when looking at a product, to identify easily (a) whether it does or does not contain dairy; and (b) for what, if any, animal-based ingredient the dairy-free alternative can serve as a functional replacement. The products of which the NMPF complains do both of those things quite well and are therefore beyond reproach, for those who value truth in advertising.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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