Economy & Business

The FDA’s Attack on Milk Substitutes Is Corporate Welfare in Action

(Jason Reed/Reuters)
The agency is acting on the dairy industry’s behalf, to crack down on its competitors.

Scott Gottlieb, the head of the FDA, first jokingly — and then seriously — announced that the FDA plans to crack down on the use of the word “milk” on the packaging of products such as soy milk and almond milk, because plants do not lactate. The FDA’s stance, in essence, is that the use of these common names constitutes fraud — that these products are being passed off as something that they are not.

But trickery is simply not how these beverages make it into customers’ refrigerators. In fact, plant-based-milk producers go to great pains to make the lack of animal milk in their products explicit, because their chief customers are people with lactose intolerance and those who avoid cow’s milk for religious or ethical reasons, such as observant Jews and vegans. These companies state quite bluntly that they are not selling cow’s milk by appending plant names to the word “milk.” That is how they get customers to pay a higher price than they’d pay for the same amount of cow’s milk.

Must all language be literal? The FDA’s new stance would seem to suggest so. The pulpy juice of coconut has been called “coconut milk” for generations, because of its appearance. Peanut “butter” does not come from miniature cows. Gold and silver “leaf”— used for decoration in some teas, liquors, and desserts across the world — is not made of leaves at all, but from thinly hammered foils of those metals. People buy and use these items, and have for centuries, while fully understanding what it is they’re dealing with. Likewise, I don’t know of any case in which a customer has purchased soy or almond milk and then been outraged to discover it is not cow’s milk.

Given that no one believes the FDA’s argument that plant-based “milks” are deceptive, what is the real rationale? The answer, it seems, is cronyism. Evidently, this move did not come out of nowhere. It’s an attempt to outsource lawmaking to the FDA and put into effect a piece of failed legislation pushed by the dairy industry earlier this year, the DAIRY PRIDE Act.

It is disturbing that failed legislation is being enacted through an administrative agency, simply because it apparently has the favor of the White House — especially given that such a crackdown would be completely unrelated to the FDA’s stated raison d’être, which is to regulate fraud, drug quality, and food safety. Simply put, this is an area that should not even fall under the agency’s mandate.

The timing of the push makes this already bad set of policies even worse. Producers of legumes, especially soy, have already been hurt badly by the Trump administration’s trade war with China, a major buyer of American legume exports. Even if the government responds to these harms by bailing out the farmers, this won’t restore their long-term financial health, which rests on being able to sell their product without arbitrary tariff or regulatory barriers.

The FDA’s war on non-dairy milk is part of a long-term effort to keep Americans committed to the idea that cow’s milk is an essential part of everyone’s daily diet. This belief, itself the product of decades of advertising and lobbying, is unfounded — and American consumers are catching on. For quite some time milk sales have been falling, yet the government still incentivizes excess production by dairy companies and then buys millions of dollars’ worth of surplus milk. That is, the taxpayer pays for both the overproduction and its “relief.”

The FDA should concentrate on food and drug safety, rather than policing language in the service of incumbent corporations.

The plant-based-milk crackdown also recalls the FDA’s infamous persecution of the company Hampton Creek for deigning to name its egg-free mayonnaise “Just Mayo.” Like the plant-based-milk producers, Hampton Creek was not misrepresenting its product — it highlighted the lack of egg in its marketing. Attention was first brought to the small brand when Unilever brought a lawsuit against them for selling “mayonnaise” without eggs, acknowledging in the lawsuit that Unilever’s own Hellmann’s mayonnaise was losing market share. Unilever soon withdrew the suit, perhaps to avert the PR nightmare of a David-vs.-Goliath corporate story — but the FDA soon stepped in to take up exactly the same complaint. Eventually, the FDA allowed Just Mayo to retain its name, albeit with some rewording of other parts of the label. It was later discovered that the American Egg Board, which is partly a USDA department and partly an egg-industry corporate association, had conspired to try to block Just Mayo sales, leading Senator Mike Lee to call for an investigation.

The FDA seems to see itself as the enforcer for established food corporations, protecting them from new products that cut into their market share. This is not a matter of differing approaches towards the same goals, as with the debate over how the FDA should run drug trials; it is a case of the FDA engaging in behavior that should not even fall under its mandate, and doing so as part of an end-run around Congress.

Buyers of egg-free mayonnaise and plant-based milks are not being defrauded. They are choosing the alternative product for a reason. Even if the FDA and the dairy lobby have their way, these customers are not going to switch to buying cow’s milk, dairy cheese, or whichever other product the FDA favors. The FDA should concentrate on food and drug safety, rather than policing language in the service of incumbent corporations.

Jibran Khan — Jibran Khan is the Thomas L. Rhodes Journalism Fellow at the National Review Institute.

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