“Evaporated cane juice.” As a consumer (and compulsive label-reader), I’ve seen this one a lot. If you think about it, it’s just a fancy way of saying sugar.
Then why not just say sugar? (Or “cane sugar” if you want to be precise about the source?) Because sugar’s got a bad reputation. Overall, we eat too much of it and it’s not great for us, so we’re being told to cut back. And maybe, thinks the food company, those of us who are trying to cut back won’t see red flags when they call it “evaporated cane juice.”
So the Food and Drug Administration is (maybe) considering doing something about this practice. They’ve got a tentative opinion that food companies shouldn’t be allowed to use this name, specifically the “juice” part. (As I read the FDA’s guidance, “dried cane syrup” would be allowed instead.) They had this tentative opinion back in 2009 too, and haven’t done anything about it; they recently gave the public another sixty days to submit comments. Maybe they’re ready to wrap it up.
Lots of people and groups submit comments on things like this. One comment that caught my attention came from the National Milk Producers Federation. (H/T Ag & Food Law Blog.) It’s an unusual comment because it kinda has absolutely nothing to do with the FDA’s proposal.
Milk producers generally aren’t in the business of putting sugar (or even “evaporated cane juice”) in milk. So why do they care? Really, they don’t. (Maybe they should; perhaps the Whole Foods crowd would eat more, well, whole foods like milk if they were more attuned to how much sugar is added to other stuff.) Instead, their comment just argues that the FDA should be doing other things with its time. Their actual gripe is that the FDA isn’t taking action on a completely different food labeling issue — the common name of plant-based “milks” (like soy milk, almond milk, rice milk, etc.)
These have been growing in popularity, and the milk producers may think it’s cutting into their bottom line (or potentially could, if the trend continues). The milk producers think these shouldn’t use the word “milk.” And, although totally off-topic, that’s what their comment is all about — asking the FDA to stop these products from calling themselves “____ milk.”
Of course, in urging the FDA to take action against plant-based competing products, the milk producers have to argue that consumers are somehow being harmed. Their argument is that consumers are being deceived by these plant milks — people are confused because they’re being called milk. They write:
To be clear, NMPF is not maintaining that consumers are confused as to the origin of these imitators – we do not think Americans mistakenly believe soybeans and almonds have udders and produce “lacteal secretions”. However, NMPF strongly contends that consumers are being defrauded by the inferior nutrient content of these misbranded non‐dairy products compared to their true dairy counterparts (21 CFR §101.3 (e)(1)).
Well! I’m glad they give us enough credit to realize that almonds don’t have mammary glands. But what about the nutrient content — do folks believe that plant milks have the same nutritional value as cow milk? Or do people know that they’re two totally different things?
I personally think consumers know that they’re buying something different-in-kind from cow milk. Some evidence of this comes from the milk producers’ letter itself: they point out that these products often make claims such as “as much calcium as milk.” I’m not sure how the existence of such claims proves consumers are being deceived, as they argue. If anything, it shows that the companies feel the need to communicate what’s in the carton, because consumers might not otherwise think it has the nutrients we associate with milk, like calcium.
But ultimately, under the regulation the milk producers cite, it arguably doesn’t matter whether consumers are deceived or not. 21 C.F.R. 101.3 states that you have to label your product as an “imitation” if it is “a substitute for and resembles another food but is nutritionally inferior to that food.” Lots of folks who can’t or don’t drink milk use these products as a substitute (e.g. in their breakfast cereal), and some of these products look kind of like cow milk. And under the reg, these plant-based milks would be “nutritionally inferior” if they had less protein, calcium, or other vitamins and minerals that might be naturally present in unfortified cow’s milk. As a result, anything that doesn’t make the cut-off for any of milk’s significant nutrients would have to bear the word “imitation.” (As in, “imitation milk made from rice.” Doesn’t quite have the same ring as “rice milk.”)
If they’re right, would this actually affect things? Plant milks are often fortified with vitamins and minerals, so most of them are covered there, or could be with a bit of fortification. But while soy is protein-rich, others like almond, rice and coconut milks often don’t have as much protein, so would likely be affected if the FDA took the milk producers’ advice.
So, is the milk producer argument a good one? Reading the text literally, it seems to work. These plant milks are sometimes substituted for and look like cow milk. At least some of them won’t have the same level of nutrients. So maybe that subset should be labeled “imitation milk”?
There are a number of problems with this argument. First, whether these products even really “substitute for and resemble” milk. These plant milks generally don’t “resemble” milk because they don’t smell or taste very much like milk, and many of them have a brownish hue, so they don’t even look like milk. (Although we commonly use “resemble” to refer mostly to visual appearances, the history of the “imitation” term shows that it’s directed at taste, smell, and texture, as well as looks.) And while they are sometimes used as a substitute by consumers in things like cereal, the regulation is really targeting things used as a substitute by food manufacturers. These products are not cheap switcheroos to fool consumers (indeed, they’re often more expensive), but rather they’re sought out and chosen by consumers specifically because they are not cow milk, usually because of preference or dietary restrictions.
But what’s really fascinating is what arguments the milk producers don’t make here: again, they’re arguing these are “imitation” foods, and even applying their logic, this wouldn’t stop the plant “milks” that are nutritionally similar to cow’s milk. And even still, others would just have to say the word “imitation.” But their real beef is with the use of the word “milk” in the first place. You would think they would want to make a stronger argument about standards of identity, one that prohibits all plant-based milks from using the word “milk” at all. The argument can be made, but they don’t quite make it.
To make matters more interesting, there’s some support for this other argument in a few FDA warning letters. In one 2008 example, which they cite, an FDA regional office wrote:
Your [soymilk] products use the term “milk” as part of their common or usual name. Milk is a standardized food defined as the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows [21 CFR 131.110]. Therefore, we do not consider “soy milk” to be an appropriate common or usual name because it does not contain “milk.” We do consider “soy drink” or “soy beverage,” however, as acceptable common or usual names for such products.
Of course, in this warning letter, this is kind of a kitchen-sink issue thrown in on top of some more serious (and unquestionable) violations. And even though the milk producers cite to this letter, which has an argument against using the word “milk” at all, this isn’t the argument they make. Why not?
The answer is (probably) that they realized that this is a bad argument, and maybe the author at the FDA regional office did not think it all the way through. This logic — “milk” always means “milk from cows” — would make goat milk (or any other mammal’s milk) misbranded in just the same way. And folks were referring to coconut milk to mean the extract of grated coconut meat long before a diluted, sweetened version of it became popular as a dairy alternative. (Coconut milk is conspicuously absent from the NMPF letter.) “Milk” is a word kind of like “tea,” “fish,” and others — left unmodified it means one thing in our language, but add a word in front of it, and it becomes something totally different. (Peppermint tea is not made from tea leaves; shellfish and jellyfish are not fish.) Cows don’t have a monopoly on the word milk, at least not in the English language .
One last twist: the milk producers made the standard-of-identity argument in another totally off-topic comment a few years ago when the FDA was seeking feedback on front-of-package labeling. I’m not sure what made them change their approach to the new imitation-based one, but I think it was a dose of common sense. As they acknowledge, people know that soy milk isn’t cow milk. These names are commonly used, and people buy the products precisely because they don’t contain cow milk. Better to try to get it classified as an “imitation” food (though still not a great argument).
The arguments may change, but this battle over dairy analogs has been going on for decades, from when the very same NMPF sued FDA in 1983 for taking a weak position on the meaning of “imitation,” stretching all the way back before 1938’s Carolene Products, the “filled milk” case. The latter is one of the most famous cases in constitutional law (particularly for its footnote number 4).
What can I say? There’s just something about milk…