FDA recently announced the availability of Draft Guidance which addresses the naming of plant-based milk alternatives and the voluntary use of nutritional statements by these products. Although FDA has established a standard of identity for “milk,” available at 21 C.F.R. 131.110, the Draft Guidance permits plant-based alternatives to include “milk” in the name because FDA determined the use of a name such as “soy milk” or “almond milk” does not represent that the product is, in fact, milk. FDA concluded that consumers do not mistake plant-based alternatives for milk.
Because of these determinations, the Draft Guidance permits plant-based alternatives to include “milk” in the product name. FDA stated that product names for plant-based products should include a descriptor of the base of the product, such as “soy,” “oat,” or “almond.”
In addition, the Draft Guidance recommends that plant-based alternatives that use “milk” in the product name and that have a nutrient composition that differs from milk include an additional voluntary statement describing the difference in nutrient composition. FDA provided an example of such statement, “Contains lower amounts of [nutrient] than milk.” FDA determined that consumers may not understand the nutritional differences between milk and plant-based alternatives and, as such, determined that a statement of nutritional differences would better allow consumers to determine the role of milk and plant-based alternatives in their diet. In addition, FDA recommends that a voluntary statement be included when a claim is made on the product which positively compares the product to milk. For example, if a plant-based alternative claims to provide more calcium than milk, FDA recommends including a qualifying statement providing a comparison of other nutrients to milk.
The full Draft Guidance can be viewed on the FDA website. FDA is accepting comments on the Draft Guidance, which can be submitted on Regulations.gov until April 24, 2023.
Liz Presnell is a food industry consultant and lawyer, and has worked in the food industry for nearly a decade. She can be reached at presnell@foodindustrycounsel.com.