Milk-industry players want the government to stop non-dairy varieties from using the term.
Milk-industry players want the government to stop non-dairy varieties from using the term.
P lant-based milk producers scored a First Amendment victory in February, when the U.S. Food and Drug Administration clogged Big Dairy’s plans to censor their speech. The scheme is now circling the drain, but its proponents refuse to quit.
Their goal, which they have pursued for decades, is to secure a monopoly on the word “milk.” If they succeed, makers of almond milk, soy milk, oat milk, coconut milk, and rice milk would have to search for new terms. The National Milk Producers Federation suggests “beverage,” “drink” or “juice.”
The lobbying group claims the alternative language is necessary to protect consumers, who might accidentally buy a plant-based product thinking it contains dairy because the carton says “milk.” Based on this logic, the same consumers might try buying milk of magnesia for their corn flakes. They might even see the cow logo on Elmer’s Glue and get confused.
Common usage undercuts this logic. “Milk” and “milky” can describe any white, pasty substance — even a galaxy — which is why dictionary writers include definitions unrelated to lactation. People in the real world know this. The FDA’s own market research shows that consumers are not confused, which is why the FDA issued draft guidance allowing plant-based milk producers to keep using “milk.”
If the guidance survives and becomes binding, dairy conglomerates would have to compete the old-fashioned way — by promoting their products on a level playing field, not by using government enforcers to silence their rivals. The public-comment period for the draft guidance ended July 31, and so far, it remains on track for approval.
Win or lose, Big Dairy lobbyists have vowed to keep fighting until the cows come home.
Having seen their regulatory strategy curdle, they are shifting their focus from FDA headquarters in Maryland to Capitol Hill, where lawmakers are hashing out a comprehensive farm bill. The 1,000-page measure will cover everything from rural development to agricultural research for the next five years, and Big Dairy lobbyists hope to slip in a milk-censorship provision somewhere in the fine print.
They are also recruiting lawmakers to pressure the FDA. Doing the bidding of Big Business is one of the few remaining bipartisan activities. Democratic senator Tammy Baldwin of Wisconsin and Republican senator Jim Risch of Idaho are leading the way, collecting signatures for a pro-censorship letter to the FDA.
Other lawmakers have resorted to publicity stunts. Republican representative Mike Simpson of Idaho, for example, has roamed grocery-store aisles placing sticky notes on cartons of plant-based milk that read: “This is not milk.” Perhaps someone should send Simpson a dictionary.
Of course, no one believes shoppers need sticky notes. The real intent has never been consumer protection. It is industry protection. Powerful groups want special favors for themselves at the expense of others.
What they fail to appreciate is the Constitution, starting with the First Amendment. If advertisers use clear, accurate language that consumers understand, then no fraud occurs — and regulators have no legitimate reason to restrict speech.
People have a right to tell the truth. Holy cow!
Big Dairy does not agree. Our public-interest law firm, the Institute for Justice, has caught regulators crossing the line multiple times on behalf of industry insiders. Florida inspectors told dairy farmer Mary Lou Wesselhoeft she could not call her all-natural skim milk “skim milk” because she refused to dilute it with artificial additives like vitamin D. Maryland dairy farmer Randy Sowers faced a similar constitutional violation when he tried to sell his all-natural skim milk across state lines in Pennsylvania.
Independent dairy farmers Joseph and Brenda Cochran face the opposite scenario. Instead of losing their right to speak, the government denies their right to stay silent. Federal regulators force them to contribute financially to advertising campaigns like “Got Milk,” which go against their values. In their view, these national ads portray all milk as the same, which helps giant milk factories at the expense of niche producers.
Expanding the abuse to plant-based milk producers would represent one more setback for free speech. Big Dairy wants to bottle up its competition. But the First Amendment is a sacred cow.
Justin Pearson is a managing attorney at the Institute for Justice in Miami. Daryl James is an Institute for Justice writer in Arlington, Va.