March 9, 2023Client Alert

FDA Draft Guidance Endorses Labeling Plant-Based Beverages As “Milk,” But Recommends Disclosure of Nutritional Differences

In February, the U.S. Food & Drug Administration (“FDA”) released draft guidance on the labeling of plant-based milk alternatives. The draft guidance also recommends that manufacturers of such products include voluntary nutrient statements on plant-based products labeled “milk” to describe nutritional differences between the product and dairy milk.

Though “milk” is a product name for which FDA has long had an established standard of identity, FDA’s guidance does not take the position that “milk” should not be used to refer to plant-based milk alternatives or require that such products be labeled as “imitation.” Instead, FDA’s draft guidance allows milk alternatives to be labeled using the term “milk,” provided that the product name is qualified by the specific plant source—such as soy, almonds, oats or nuts—that is the predominant or characterizing ingredient in the plant-based beverage.

Under the draft guidance, product names such as a “almond milk,” “soymilk,” “oat milk,” “cashewmilk” or “walnut & cashew milk” are all permissible product names. In FDA’s view, such terms meet the requirement that non-standardized foods be labeled with their common or usual name, if such a name exists. FDA also indicated that milk alternatives could also be permissibly referred to as “beverages” or “drinks,” rather than “milk.”

FDA’s draft guidance recommends against referring to milk alternatives as simply “plant-based milk” or “plant milk.” These names do not provide information to consumers about the characterizing or predominant ingredient in the milk alternative. “Consumers should be able to easily determinate the particular plant source when looking at the name of the food on the label (e.g., almond or oat),” FDA explained. Similarly, naming a milk alternative product “non-dairy milk” or “dairy-free milk” would not be adequate because it does not provide consumers information about the characterizing or predominant non-dairy ingredients. However, a non-dairy or dairy-free claim (separate from the product name) may still be included on product labeling if truthful and non-misleading.

For plant-based milk alternatives that are blends of multiple plant sources, FDA explained that the product name should accurately convey that. FDA provides the examples “Soy and Nut Milk Blend” or “7 Grain Plant-Milk Blend.”

In what might be seen as a limited victory for the dairy community, FDA also recommends the use of voluntary nutrient statements on milk alternatives to disclose nutritional differences between the milk alternative product and dairy milk. Specifically, the draft guidance advises manufacturers of milk alternatives that use “milk” in the product name, or that otherwise make a relative claim comparing the product to milk (e.g., “Contains 50% more calcium than milk”), to provide voluntary nutrient statements on their product labels if the nutritional composition of their milk alternative is different from dairy milk.

In determining whether a voluntary nutrient statement is necessary, manufacturers should compare the calcium, protein, vitamin A, vitamin D, magnesium, phosphorous, potassium, riboflavin and vitamin B12 content of their milk alternative with published USDA nutrient criteria for fluid milk substitutes. If the nutrient composition is different, FDA recommends including a voluntary statement explaining the difference, such as “Contains lower amounts of [nutrient name(s) (e.g., potassium)] than milk.” FDA recommends such statement be included on the principal display panel (PDP) and be visually connected to the product name if space allows. A symbol (such as an asterisk) may also be used to direct consumers to the voluntary statement on the PDP.

The draft guidance comes after the FDA requested comments in 2018 on the labeling of plant-based alternatives with names that include the names of dairy foods and received over 13,000 comments. The agency acknowledges that without a clear distinction between milk and plant-based substitutes, consumers may be misled into believing that plant-based milks have the same nutritional value as dairy milk, which is not always the case.

FDA is accepting comments on the draft guidance through April 24, 2023. Comments may be submitted via here.

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