Explaining Why Dairy Won’t Share the Word “Milk”

Posted in: Health Law

Fights over which products may carry the label “milk” could turn out to be more personal than economic in nature. And the battle may emerge again soon at a public meeting of the Food and Drug Administration (FDA).

Last month, the FDA announced it will be holding a public meeting on September 27 to give interested parties the chance to discuss the FDA’s effort to “modernize” food standards of identity (SOI) and to tell people about changes the FDA might make to current SOIs. An SOI is a very specific set of requirements for a what a food item must contain in order to be marketed under a particular name. To give a fictional example, imagine that the name “cake” had an SOI that required a product to contain sugar and fat. In that case, a cake company could bring a lawsuit against a manufacturer of “urinal cakes” for the failure to conform to the SOI for cake. Among FDA’s first priorities in pursuing this order of business is to address use of the term “milk” on plant-based milks like soymilk, oat milk, and almond milk.

Whenever a regulatory agency makes a priority of protecting a particular industry’s “ownership” of a product term, agency capture seems a plausible explanation. An often-overlooked question might be why the dairy industry cares about other milks using the same term. The industry says it worries about consumer confusion. A container that says soymilk could mislead someone hoping to purchase “bovine lacteal secretions” (part of the official definition of milk). That person might later become upset and feel cheated, having drunk a plant-based drink instead of the hormone-and-pus-containing breast milk of a mother cow. This scenario seems unlikely because (a) the word “soy” precedes the word “milk” on the label, and after decades of the product’s existence, people are familiar with it, and (b) those who buy soymilk are deliberately avoiding the alternative beverage made from secretions. People might make an error now and then, in the same way as they might do with other properly labeled products, but there is no evidence of widespread confusion about plant-based milks.

The dairy industry says too that dairy milk has a “halo” around it, a halo that should not extend to products other than dairy milk. It is difficult to assess the halo claim, but if customers are not confused about the difference between animal milk and plant milk, then it is unclear why anyone has the right to monopolize a halo. If some people believe that dairy milk is magical, then they are mistaken, and the dairy industry has no greater claim on benefitting from that mistake than any other business does. If anything, belief in a halo represents a state of confusion that FDA ought to be striving to resolve rather than effectively designating as industry property.

A more concrete economic concern might be the worry that if people see the word “milk” on plant-based milks, they will know to compare them to animal-based milks, and the comparison will result in lost business for the dairy industry. If I am at the supermarket and see Bounty paper towels next to Wegmans paper towels with the line “compare to Bounty,” I might decide to buy the second brand because it is a cheaper version of the same thing. This would harm the company that makes Bounty and would provide a comprehensible explanation for a subsequent complaint by that company and effort to keep the word “Bounty” off all but Bounty products.

When it comes to milks, though, people—once again—know that lacteal milk and plant-based milk are different from each other. That is the part about not being confused. By contrast, the “compare to” products at the supermarket are often essentially the same. The paper towels are pretty much identical, as are the detergents and lotions. That is the nature of imitations at their best—they provide the same for less. Soymilk, oat milk, cashew milk, and almond milk are not the same and are not purported to be the same as dairy milk. They are not imitations but a distinct product with enough qualities in common to make the use of the same word helpful to the consumer seeking something to pour into their coffee, on their cereal, or in their chocolate chip cookie recipe.

Am I suggesting that the availability of plant-based milk does not harm the dairy market? No. I think it is very likely that the opposite is true. Plant-based milks are very attractive to many people who would otherwise buy dairy precisely because plant-based milks contain no lacteal secretions and are therefore kinder to animals and to the planet. They also happen to be delicious, though they taste different from dairy milk. If the test were whether dairy milk would make more money than it currently does if plant-based milks did not exist, then dairy would pass the test. But the test is not whether the existence of plant-based milks poses a competitive threat to lacteal milk; posing a competitive threat is really the essence of a free enterprise system, and it would be odd to suppress such competition. The question is whether use of the word “milk” creates problems for dairy, and it seems quite likely that it does not. People are aware of soymilk, etc., even if the word “milk” is not used. We live in the internet age in which the range of available products is no secret to the consumer, no matter what word they encounter.

If I am right that “milk” in soymilk, etc. does little on its own to harm the dairy industry, then why fight it?

The question makes me think of couples that get divorced. Many people keep their respective last names when they get married now, so the phenomenon I am about to describe is more a thing of the past than of the present. In the past, Jane Smith would marry John Doe and become Mrs. Jane Doe. The two would then become incompatible and get divorced. At that point, Jane would often, though not always, go back to being Jane Smith. Why did she do that?

One possibility is to deconstruct the initial name change as a patriarchal institution that reflected the transfer of property (the woman) from the father (whose name she carried up until that point) to the husband (whose name she took when she became “his”). But I have spoken to enough women who took their husband’s names to know that they do not typically see themselves as chattel property. They say that taking a man’s name is a way of becoming publicly closer, comparable to a girl wearing her boyfriend’s football jersey (or for Jennifer Lopez and Ben Affleck to go by “Bennifer”). And if the two break up, then wearing the jersey, signing cards “Bennifer,” or carrying the name can become uncomfortable. Maybe it reminds girls and women of a relationship that did not work out. Maybe it makes people believe a defunct couple is still extant. Some divorcing pairs can hardly wait to change their names back/see their former partners’ names changed. To the extent that the breakup is characterized by hostility and aggression, the desire for retribution—“you can’t use my name anymore!”—is likely to be heightened.

What does any of this have to do with milk? I don’t think the lacteal milk industry ever saw plant-based milks as its “wife” or “girlfriend.” It was probably just a relatively benign annoyance unworthy of any attention. But once people started purchasing soymilk, etc. in larger numbers, the dairy industry—I would suggest—came to actually despise those alternative milk providers. They want to be the ones to name the children.

For a very long time, people have viewed cow milk as peerless and essential. Due in part to plant-based milks, that view has begun to change. And rather than regarding lacteal secretions as wholesome, people have started to understand that mammalian breast milk from a different species is not necessarily the perfect food for humans. Increasing numbers are trying alternative milks and challenging the complete dominance of animal milk in the market. Such developments are enough to make a “privileged” industry feel threatened and angry in a way that ordinary industries would not feel about the presence of a competitor. Plant-based milks thus invalidate animal-based milk in a way that Wegmans paper towels do not invalidate Bounty paper towels.

I must allow, of course, for the possibility that the decision to try to block plant-based milks from using the “m word” is simply a profit-driven decision. Maybe it has nothing to do with feelings of hostility or aggression. If the government sides with the dairy industry (or with the flesh industry, for that matter, which is engaged in a parallel battle with non-animal meats), the prestige of that choice could lead people to choose the animal version. Maybe. But the government is not all that prestigious at the moment. People hear the news about plant-based milks and then see them at the supermarket. Supermarkets tend to organize their shelves in a way that maximizes purchasing, placing milk and soymilk and almond milk, etc. near one another and near dairy milk so customers know what’s for sale. The word “milk”—and the government’s choice—may therefore not even matter if everyone knows what they are and are not purchasing.

Perhaps the “halo” that dairy producers attribute to their product is an imaginary one, one that signifies a previously unchallenged dominance that now seems vulnerable. Like an ex-spouse who once believed he would always be in charge, the industry that sells the milk of human cruelty may be angry and vindictive, declaring its last name a forbidden word belonging to it alone.

Posted in: Consumer Law, Health Law

Tags: FDA, milk

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