Source: POLITICO'S MORNING AGRICULTURE, 7/18/18

FDA Commissioner Scott Gottlieb indicated on Tuesday that his agency intends to crack down on plant-based products being labeled with terms like "milk" and "yogurt" on grocery store shelves. The move could be a huge win for the dairy industry, which for years has fought against the rise of milk alternatives, calling on regulators to enforce the so-called standard of identity.

"If you look at our standards of identity, there is a reference ... to a lactating animal," Gottlieb said during an interview at the POLITICO Pro Summit. "An almond doesn't lactate, I will confess. So the question becomes, 'Have we been enforcing the standard of identity?' And the answer is probably not."

How the process will work: FDA plans to solicit public comment on the issue soon before taking further steps to redefine the labeling rules, Gottlieb said, adding that the process may take a year. He acknowledged that whatever road the agency goes down, litigation will likely follow.

"Invariably we're going to get sued, probably. If you open up [FDA's] standard of identity, it talks about a lactating animal. But if you open up a dictionary, it talks about milk coming from a lactating animal or a nut," he said.

A good sign for the dairy industry: The National Milk Producers Federation praised Gottlieb's decision, but still jabbed the FDA for taking so long to take this step. In a statement, President and CEO Jim Mulhern predicted the debate can be addressed quickly if the FDA moves forward with enforcement. The group argues that consumers are in the dark about nutritional differences between dairy products and plant-based alternatives, and therefore are being misled.

"Once FDA acts to provide guidance to industry on enforcement of existing standards of identity, manufacturers currently playing fast and loose by using standardized dairy terms on products containing no dairy will know the jig is up," Mulhern said. "Their products have every right to be in the marketplace, but they will have to be properly identified to comply with FDA standards."
Plant advocates say not so fast: The Good Food Institute, which promotes plant-based meat, dairy and egg substitutes, also viewed Gottlieb's announcement as a good sign for its interests. In March 2017, it petitioned FDA to undertake rulemaking, asserting that makers of dairy alternatives have a First Amendment right to use labels clearly describing their products. Bruce Friedrich, the group's executive director, said he believes that once FDA has considered its options, the agency will grant GFI's petition.

"The government is only allowed to restrict commercial speech if there is a substantial risk of consumer harm and their solution is narrowly tailored to solve the harm," Friedrich said. "There is no way that the act of censoring plant-based milk makers would be able to clear this clear constitutional bar."