It's not milk if it comes from a zucchini

EC: The Dairy Lobby's Fight to Preserve Milk's Good Name
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“We’re here to tell you about ‘Water Milk,’” says Fred Armisen as Royce, an expert milk analyst of the fictitious Portland Milk Advisory Board on an episode Portlandia. He and his partner Alicia, played by Carrie Brownstein, are standing amid a harried set of bubbling beakers, conducting Public Service Announcements to promote the newest pie-in-the-sky milk and milk alternative beverages. Previous alerts included “cashew milk” and the hearing-loss-inducing “zucchini milk.” Now, Armisen is holding a jar of water with a ‘Water Milk’ label slapped on it. “It’s water, and you know what, just drink more water,” says Brownstein.

Although the twenty-to-thirty-something crowd might chuckle at this self-referential gag, to the dairy industry, the adulteration of the term “milk” has been a longstanding problem. Since the turn of the millennia, the milk aisle has gotten really, really crowded, with a growing array of plant-based milk substitutes bearing the term “milk” cozying up to the real thing in all its fat free, 2 percent, and whole milk glory. With dairy consumption no longer holding its cultural cache as the pinnacle of health, these hyper-niche alternatives have begun siphoning both the lactose intolerant and on-trend dieters from the dairy consumer base, much to the chagrin of farmers.

Ninety-one percent of adults may still drink dairy milk, according to intelligence marketing agency Mintel, but it’s competition has grown significantly. Nielsen, a consumer data company, released a 2016 report documenting changes in the milk substitute market. Almond milk saw a 250 percent growth in sales between 2011 and 2015, even though the total milk market shrunk by $1 billion.

“[Milk] as a whole has been in decline over the past few years,” says Jordan Rost, the Vice President of Consumer Insights. “Plant-based varieties are a new way of connecting the category with the modern consumer view of what a healthful beverage can be.”

In December 2016, a bipartisan group of 32 Congressional Representatives, many from dairy industry-backed states, signed a letter asking for the Federal Department of Agriculture to crack down on milk alternative producers using labels with the phrase “milk.” Shortly afterwards, Senator Tammy Baldwin (D-WI) bolstered their efforts by introducing the DAIRY PRIDE Act, a bill influenced by complaints from the local dairy farmers in her representative state. This bill, if approved, would further protect many elected officials’ voter interests by keeping a tighter leash on the FDA, requiring it to issue guidance on handling mislabeling of any non-dairy products made from plant-matter with everyday dairy terms like milk, yogurt or cheese, as well as reporting to Congress two years with an update on the bill’s enforcement requirements.

“Imitation products have gotten away with using dairy’s good name for their own benefit,” Senator Baldwin wrote in an email. “This is against existing FDA regulations—and these protections must be enforced. The FDA needs to step in and stop the misbranding of imitation dairy products.”

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Although plant-based food companies have labeled beverages containing water and ground legume paste or plant-derived ingredients as “milk,” according to the Federal Department of Agriculture, “milk” is defined as the “ lacteal secretion, practically free from colostrum [a type of milk containing antibodies from the mother to its infant to help protect from disease], obtained by the complete milking of one or more healthy cows.” And even though biologically milk simply means a lactated mammalian byproduct, labels containing this liquid from a goat or any other mammal must specify the origin.

According to Chris Galen, the senior vice president of communications at the National Milk Producers Federation, a lobbyist group based in Washington, D.C., there’s reason for specificity. “Labels are meant to help identify what’s inside the package,” says Galen, adding that “milk alternatives are using dairy imagery, similar packaging, and similar names, but they rarely imitate the nutritional content.”

According to Consumer Reports, eight ounce servings of various milk substitutes like almond, soy, rice, hemp, and coconut milk, do differ from an eight ounce serving of one percent milk. Many substitutes contain less calories and protein, but many contained approximately the same amount of daily calcium intake, fat content, and were fortified with vitamins and minerals, just like dairy milk.

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Admittedly, some experts believe milk’s status as necessary for a healthy diet could have just been the result of good lobbying. Dietary scientist Bruce German notes we can get our daily vitamin and nutritional intake from other sources like spinach (calcium) and salmon (vitamin D). But that doesn’t mean the dairy industry wants to share its namesake with soy and almond beverages.

This differentiation of health is also on the minds of consumers. In 2015, Trader Joe’s customers filed a class action lawsuit against the grocery store chain, claiming that it misled customers on the nutritional content of its soy-based beverage by labeling it as “Soy Milk.” Vince Chhabria, the U.S. district judge presiding over the case, ruled that any sensible consumer would know the two different beverages would contain different nutritional content.

Galen of the National Milk Producers Federation, however, disagrees with this ruling. “You’d want to associate yourself with a product people recognize for its safety and nutritional package,” explains Galen.

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While the milk industry continues its decades-long battle against plant-based substitutes, lobbyists for these dairy alternatives are looking to expand the definition of milk officially. In 1997, the lobbyist group Soyfoods Association of America filed a petition for FDA to recognize “soymilk” as an acceptable name for any product derived from soybeans and water. Even though the FDA never made a decision on the request, two decades later the organization maintains its position on the debate.

Adam Fox, a lawyer specializing in food and beverage litigation, believes that while clear-cut differences between the origin of milk and milk substitutes may seem intuitive, a large amount of ambiguity arises when giving a legal definition for words like “milk.”

“You’ve got disputes arising over hypertechnical interpretation of scientists who may have specialized in these fields, lawyers, and government regulators who may be lobbied for,

versus what the consumer public thinks at the end of the day,” says Fox. “It boils down to how you draw the line between those views, and also how you harmonize them.”