The FDA, which had previously announced its intention to publish preliminary guidance on the labeling of plant-based milk by the end of June, told us: “The FDA intends to publish draft guidance that is expected to be titled ‘Labeling of Plant-Based Milk Alternatives and Voluntary Nutrient Declarations: Draft Guidance for Industry’ in the near future. The draft guidance is currently under review by OMB [which has a standard review time of 90 days].”
When asked when the FDA would define ‘healthy,’ the agency said: “The FDA has drafted a proposed rule and the rule is under review by the OMB.” Separately, two studies – outlined here– in a symbol that companies can use on products that meet the definition of ‘healthy’ will be held “in the near future”, added the agency.
Plant-based milk labeling
While terms like ‘soy milk’ and ‘oat milk’ are banned in the EU (where Oatly is an oat drink), they are widely used in the US (where Oatly is oat milk). And the FDA, critics say, has vacillated uselessly on whether such terms mislead buyers or violate federal Identity Standards,that limit the term ‘milk’ to the “milk secretions“of cows.
For example, the FDA questioned the term “soy milk” in warning letters to a couple of manufacturers in 2008 and 2012, but then maintained radio silence on the subject until then-FDA Commissioner Dr. Scott Gottlieb. reignited the debate in mid-2018, telling delegates at a conference in Washington that, “We have a standard of identity for milk. and I intend to enforce that… an almond does not lactate.”
Gottlieb also noted, however, that there could be First Amendment issues to address, and that the FDA could face legal challenges by suddenly banning terms like “almond milk,” having tacitly endorsed such terminology on food labels for years. .
A request for information issued in September 2018soliciting comments on the issue generated a dizzying amount of comment, with dairy farmers arguing that the word ‘milk’, even with the term ‘almond’ before it, falsely implies nutritional equivalence with dairy; while The Good Food Institute and Plant Based Foods Association argue that there is no evidence that consumers are confused or assume that oat milk or almond milk must exactly match the nutrition of cow’s milk.
The GFI told FoodNavigator-USA: “GFI applied to the FDA in 2017 a common sense regulation that makes it clear that compound names like ‘oat milk’ and ‘almond milk’ are legal. Now would be a good time for the FDA to grant that request and settle this issue once and for all.”
What is ‘milk’?
FDA Standards of Identity define the unqualified term ‘milk’ as the ‘milk secretion, practically free of colostrum, obtained by the complete milking of one or more healthy cows.’
Based on plant-based brands, which typically use a modifier (eg, almond milk) and additional qualifiers (eg, dairy-free, plant-based, dairy-free) to make it clear that they do not sell cow’s milkSuch standards of identity were designed to address fraud and economic adulteration, not to prevent plant-based alternatives from referring to standardized terms (e.g. milk) in their marketing altogether.
Courts handling plant-based ‘milk’ misleading advertising cases tend to agree, arguing thatThe federal standard of identity for milk does not categorically prevent a company from giving names of food products that include the word ‘milk’.
For example, in a Case against Trader Joe’s,Judge Vince Chhabria noted that the word ‘soy’ before ‘milk’ cleared up any confusion as to the contents of the package in question: “Trader Joe’s, by calling its products ‘soy milk,’ has not attempted to pass those products off as the food that the FDA has standardized (ie milk).”
On the question of nutritional equivalence, Stephen Wilson, the judge handling a false advertising case against Blue Diamond Growers (Almond Breeze) in California, I didn’t buy the argumentthat the word ‘milk’ came with a certain set of nutritional expectations, adding: “If the consumer is concerned about the nutritional qualities of the product, they can read the nutritional label…”
What is healthy?
Historically, food labeling rules have allowed “health” claims on foods with 3 g or less total fat and 1 g or less saturated fat per serving (excluding fish and meat), with cholesterol and sodium limits, and requirements. minimum nutrients to promote (vitamin A, C, calcium, iron, protein or fiber). There are no limits for sugar, added or not.
However, the FDA revised the definition in 2016 after KIND Snacks challenged a definition of “healthy” that immediately excluded products high in healthy unsaturated fats, such as nuts and avocados.
This resulted in guideAllow “health” claims on higher-fat products as long as “have a fat profile made up predominantly of mono- and polyunsaturated fats; or contain at least 10% of the Daily Value (DV) per reference amount usually consumed (RACC) for potassium or vitamin D.”
At the same time, the FDA issued a request for information to interested parties on the use of the term healthyin September 2016, what prompted thousands of conflicting comments.
Dr. Marion Nestlé: “We will end up with many products that meet the definition but remain junk food or ‘better-for-you’ options”
Several commentators questioned the value of joint exercise, including the nonprofit food and nutrition education organization Oldways, best known for creating the Whole Grain Seal, which urged the FDA“I don’t endorse the use of the word ‘healthy’ at all, since diet in general determines health, not individual foods, and certainly not individual nutrients.
Even the FDA new guide “would do still result in a food like brown rice not qualifying for a health label,”noted Oldways: “Regardless of the combination of nutrient criteria that the FDA requires as healthy, it is inevitable that a reductionist approach will result in efforts to cheat the system with fortified manufactured foods, while some whole natural foods may not qualify.”
If the FDA has to come up with a definition, he added: “Oldways recommends using it to highlight whole or minimally processed plant foods, which are especially recommended in the 2015-2020 Dietary Guidelines for Americans [including fruits, vegetables, legumes/pulses, whole grains, vegetable oils if mostly unsaturated, herbs and spices, nuts, and seeds] instead of linking the use of the word ‘healthy’ to a nutrient formula”.
Meanwhile, Dr. Marion Nestle, the Paulette Goddard Professor of Nutrition, Food Studies, and Public Health at New York University, told us at the time: “The problem with all of this is that the criteria are inevitably arbitrary and easy to circumvent. We will end up with many products that meet the definition, but are still junk foods or ‘better-for-you’ options. Better-for-you junk food may still not be a good option.”
Bonnie Taub-Dix, RDN, creator of BetterThanDieting.com and author of Read It Before You Eat It – Taking You from Label to Table, told FoodNavigator-USA: “Looking at an individual food and putting an icon on it that says healthy is like expecting an instrument to play the music of an orchestra.”
Saturated fat, sugar, juice, in the spotlight
Reading comments issued in 2017, most stakeholders agreed that dropping the total fat threshold made sense, but disagreed on saturated fat; while cholesterol also proved controversial, with CSPI urging the FDA to maintain limits on cholesterol, while Unilever argued that “limit intake of[dietary] cholesterol is no longer a concern based on current scientific evidence.”
However, perhaps the biggest bone of contention was added sugar, with some industry stakeholders such as the Cranberry Institute arguing that a nutrient-packed food “fruit such as blueberries, which are sweetened to be palatable, should not be discounted as containing added sugar”, while the Academy of Nutrition and Dietetics “strongly supports updating any ‘healthy’ definition to limit added sugars.”
The juice also emerged as another bone of contention, as the CSPI argued that the FDA should not allow “health” claims on fruit juices.,on the grounds that we should encourage consumers to eat “the healthiest form of fruit: whole fruit”, while the Juice Products Association disagreed.
The FDA healthy probe was triggered by a rowwith snack bar maker KIND, which says rules requiring “healthy” foods to meet criteria for “low-fat” claims were outdatedThey exclude high-fat foods that we know are nutritious, like nuts and avocados, but include low-fat, sugary foods.
fda agreedreevaluate their conditions of use for “healthy” nutrient content claims, and invited public comment on questions including:
- what types of food, If anyshould the term ‘healthy?’
- What other words or terms might be more appropriate (eg, ‘nutritious’)?
- What do consumers understand by ‘healthy’ in relation to food?
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