[author: Bernadette (Bea) Hanson]

The FDA is catching up with the increase in demand for plant-based milks that has occurred throughout the last ten years. There is no established standard for the compositional requirements of plant-based milk alternatives like there is for dairy milk, so the FDA has issued a draft guidance and is seeking public comment for the final guidance (which will be considered until April 24, 2023) on labeling and nutrient statements.

Per the FDA, the guidance on label and nutrition information will help consumers differentiate between the dietary benefits of dairy milk and plant-based milk alternatives. The FDA learned from public comment on a 2018 FDA notice (83 Fed. Reg. 49103) and additional research (via focus groups, etc.) that most consumers understand the difference between dairy milk and plant-based milk alternatives, but they do not understand the nutritional difference between the products. The research indicated that consumers tend to think plant-based milks are healthier and buy it for that reason, when that may not always be the case. The compositional requirements for plant-based milk alternatives vary according to the type of plant source, the processing, the various vitamins and minerals, as well as added ingredients like oils and sugars. Because of this, labeling a product as just “plant-based milk” is not informative enough according to the FDA.

Note, the FDA draft guidance is not binding, but voluntary to follow. There is pending litigation regarding legislative limits to First Amendment regulation of commercial speech (such as food product labels). This draft guidance is the FDA’s attempt to balance labeling of plant-based milk alternatives and voluntary nutrition information to support consumers’ ability to make informed decisions about their diets, without overregulating speech on food product labels.

Bernadette Hanson is a Law Clerk, based in the firm’s Minneapolis, MN office.

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