FDA Plan to Censor “Milk” in Plant-Based Food Names May Violate the First Amendment

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Posted in: Consumer Law

The Trump administration has made deregulation a top priority, scrapping environmental protections, abandoning net neutrality, and gutting the Affordable Care Act. Yet last week, the administration finally took a stand to protect American consumers from the dire threat of … wait for it … wait for it … milk derived from soybeans, nuts, and other plant sources rather than from the “lacteal secretion” of a cow. The term “lacteal secretion” is not the invention of an animal rights organization attempting to turn the public off of dairy but the Food and Drug Administration’s (FDA’s) own definition of “milk.”

Last week, FDA Commissioner Scott Gottlieb leaned into that definition when he announced the start of a process to prevent producers of what are now labeled as soy milk, almond milk, hemp milk, and the like from using the m-word. Gottlieb pronounced that “an almond doesn’t lactate,” which is undeniably true, but that hardly justifies banning terms like “soy milk” and “almond milk.”

After all, if one takes the existing FDA definition seriously, then the agency should also propose banning the use of the word milk by sellers of the lacteal secretions of goats and sheep. Just as almonds do not lactate, so goats and sheep are not cows.

Yet Commissioner Gottlieb is not proposing a crackdown on the labeling of goat’s milk or sheep’s milk. Why not? He might cite another FDA regulation that defines milk to include the “lacteal secretion” of cows and other mammals, but that definition appears in a part of the regulatory code that aims at protecting consumers from communicable diseases. That definition does not include plant-based milks, because they do not pose the same risk of disease. The definition has nothing to do with whether plant-based milk is really milk in some metaphysical sense.

Why, then, does Commissioner Gottlieb propose to forbid the use of the m-word in the labeling of plant-derived milk? Although consumer protection has been offered as an excuse, the real reason is obvious: Lobbyists for the dairy industry worry that as Americans increasingly turn to plant-based milk, they are buying less dairy.

That concern is apparently bipartisan. Wisconsin’s license plates call the state “America’s Dairyland.” Last year, the state’s Democratic US Senator, Tammy Baldwin, sponsored a bill—the DAIRY PRIDE Act—that would forbid the marketing as dairy of any food not primarily derived from “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more hooved mammals.”

Health and Consumer Protection Pretexts

Senator Baldwin’s bill recites health and antifraud justifications for the measure. For example, it warns that “the amount of calcium per calorie is lower for most plant-based alternative milk products” than for mammalian milk. Yet, as a Harvard School of Public Health article notes, there is scant evidence that high levels of dairy consumption promote the health benefits—especially strong bones—associated with calcium. Green leafy vegetables may play a more important role and, in any event, many plant-based milks are fortified with as much calcium as found in dairy milk and are as readily absorbed.

The DAIRY PRIDE Act also asserts: “Plant-based products labeled as milk are misleading to consumers.” Really? How stupid does Senator Baldwin think American consumers are?

In dismissing a lawsuit making a similar contention to the one in Senator Baldwin’s bill, a federal district judge in 2013 explained that the claim that “a reasonable consumer would view the terms ‘soymilk’ and ‘almond milk,’ disregard the first words in the names, and assume that the beverages come from cows … stretches credulity. Under [this] logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”

Constitutional Deference

The 2013 dismissal of the lawsuit challenging the use of the m-word in plant-based milks was grounded on the absence of “any statutory or regulatory provision prescribing how the [vegetable-derived milks] must be labeled.” The Baldwin bill and the Gottlieb initiative aim to change that situation, by legislation and regulation respectively. As the reader can no doubt infer, I think that doing so would be very unwise. But would it be unconstitutional?

As a general matter, statutes and regulations are not unconstitutional simply because they are unnecessary, stupid, or even counter-productive. Indeed, the Supreme Court case that more than any other stands for that proposition involved the sale of dairy products. The 1938 ruling in United States v. Carolene Products Co. is most famous for a footnote that presaged the rights revolution of the Warren Court a decade and a half later. But the case itself involved the banning of the sale of so-called “filled milk,” in the particular case a product called Milnut, which was a combination of skimmed cow milk and coconut oil. The Court found it sufficient to reject a due process challenge to the law that there was “a rational basis for legislation,” thus deferring to the judgment of Congress that the Filled Milk Act served the public interest.

Accordingly, should either the Baldwin bill become law or the Gottlieb proposal result in a new regulation barring makers of plant-based milk from using the m-word, the law or regulation would probably survive a challenge under the Due Process Clause of the Fifth Amendment.

First Amendment

Yet just because the government may ban a product does not mean that the government has carte blanche to limit the speech of those who sell the product if it is legal. There is no constitutional right to sell tobacco products, but the US Court of Appeals for the DC Circuit nonetheless subjected FDA-mandated graphic warning labels to so-called intermediate scrutiny, rather than the rational basis test of Carolene Products, on the ground that the mandated warnings restricted the commercial speech rights of the tobacco companies. And in 2012 the companies won based on the court’s conclusion that the FDA had provided insufficient evidence that the graphic warning labels would actually reduce smoking.

Might a challenge to either the Baldwin bill or the Gottlieb proposal succeed on the similar ground that there is insufficient evidence that banning the makers of plant-based milk from using the m-word either promotes health or combats consumer confusion? That is possible, but the tobacco litigation is not the only relevant precedent.

To support an m-word ban, the government might liken it to trademark protection. A maker of knockoff devices cannot legally call her product an iPhone, because Apple owns the trademark to that term, and nobody thinks this restriction violates the First Amendment. Indeed, in a 1987 case, the Supreme Court went further to uphold the grant to the US Olympic Committee of the exclusive right to use the word “Olympic,” thus barring the promotional use of the term “Gay Olympic Games.” The Court said that, consistent with the First Amendment, Congress may grant exclusive use of a word without requiring “that the authorized user prove that an unauthorized use is likely to cause confusion.”

Does that precedent mean that granting dairy producers exclusive use of the word “milk” would likewise be consistent with the First Amendment, even absent any likelihood of confusion on the part of purchasers of soy milk or almond milk? Not necessarily. The Court said in 1987 that “Olympic” was not entirely a generic word and that it was not deciding the question “whether Congress ever could grant” exclusive rights in a generic word to private parties. That previously undecided question would be presented by a statute or regulation banning the use of the m-word on labels for plant-based milk.

There is at least some reason to believe that the courts would resolve that question against the government. In the more than three decades since the Gay Olympics case, the Supreme Court has become increasingly solicitous of free speech claims by commercial actors. Perhaps most revealing is last year’s decision in Matal v. Tam, which rejected the Patent and Trademark Office’s denial of a trademark to the band (made up of Asian American musicians) named “The Slants” on the ground that the name was offensive.

On its face, Matal may appear to be a weak precedent for the proponents of soy milk and almond milk, because the ruling upheld the granting of a trademark—i.e., it upheld the grant to exclusive use of a term. But seen in a different light, the case is quite helpful. Although no opinion commanded a complete majority, the Court was unanimous in its result, and running throughout all of the opinions was a profound skepticism about the government making ideological judgments in the grant or denial of rights to exclusive use of a word.

At that level of generality, Matal bodes well for plant-based milk producers’ First Amendment claim, because at bottom, neither the Baldwin bill nor the Gottlieb proposal is about protecting health or avoiding consumer confusion or even promoting strong brands (the goal of the Lanham Act). These are efforts of a powerful industry to use the levers of government to suppress the message of the makers of plant-based milk—that their products are healthier, better for the environment, and do not require the harmful exploitation of millions of cows or other “hooved mammals.”