The First Amendment and the right to call a product “milk”

Scott Bomboy

The difference between cow’s milk and almond milk probably wasn’t a consideration when the Founders crafted the First Amendment, but a fight over “milk” that doesn’t come from mammals could be coming to a court shortly.

On January 28, 2019, the Food & Drug Administration ended a public comment period asking consumers for their opinions about plant-based food products that use language usually attributed to dairy products.

FDA Commissioner Scott Gottlieb said in the comment request last fall that the FDA wanted public opinions “as it examines its approach to the use of dairy food names like ‘milk,’ ‘cheese,’ or ‘yogurt’ in the labeling of plant-based foods and beverages.”

“The FDA supports choice and innovation in the marketplace, and we recognize that some consumers may prefer to use plant-based products instead of dairy products for a variety of reasons, including an allergy or lifestyle choice. However, we must also ensure that the labeling of such products does not mislead consumers, especially if this could compromise their health and well-being,” Gottlieb said in an expanded explanation for the public comment request.

Gottlieb also said that the request was related to “significant health consequences – contributing to under consumption of key nutrients, such as calcium and vitamin D for which dairy products are good sources in the U.S. population.” The FDA also wanted to know “if consumers are aware of, and understand, the nutritional characteristics and differences among these products -- and between these products and dairy -- when they make dietary choices for themselves and their families,” he said.

Groups supporting the plant-based food industry don’t see a problem with using names like “almond milk” and “vegan mozzarella” when neither product originates from a lactating mammal.  “While [the] FDA must assure that foods sold in the United States are ‘safe, wholesome, and properly labeled,’ it must not overstep its regulatory authority nor violate producers’ First Amendment rights,” said the Good Food Institute on Monday. (The group advocates for “supporting research into plant-based and cultured (cell-based) meat.”) In its 137-page filing with the FDA, the Institute claims “common names” such as soy milk and vegan represent commercial speech protected by the First Amendment.

The National Milk Producers Federation sees things differently. It believes that labeling plant-based products with dairy verbiage confuses consumers and could lead to nutritional hazards. “The science is clear. The consumer need is clear. And consumer sentiment is clear: FDA needs to step up and enforce its standard of identity for dairy terms on food labels,” said Jim Mulhern, Federation president, and CEO, also in a statement on Monday.

While it is too soon to tell if the FDA will restrict product labeling for plant-based products using mammal-like branding, there has been some movement in the courts on that front. In December 2018, a three-judge panel in the Ninth Circuit upheld a lower court ruling, Painter v. Blue Diamond in an unpublished opinion. Cynthia Painter sued Blue Diamond over the use of the words “almond milk” to describe its product. The judges agreed Painter could not pursue a claim under California’s state law and that Painter could not “plausibly allege that Blue Diamond’s almond milk products are mislabeled in violation of federal law.”

Last July, in advance of the FDA’s request for public comments, Cornell Law professor Michael Dorf identified two potential constitutional issues in a scenario where the FDA decided to restrict the use of the word “milk” for plant-based products.

Dorf cited the landmark Supreme Court case United States v. Carolene Products, about a product that combined skim milk with coconut oil. “The Court found it sufficient to reject a [Fifth Amendment] 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.”

But the First Amendment challenge could center on an interpretation of a 1987 Supreme Court decision, S.F. Arts & Athletics, Inc. v. USOC, that banned a group from using the word “Olympic” for an event called the “Gay Olympic Games.” “The First Amendment does not prohibit Congress from granting exclusive use of a word without requiring that the authorized user prove that an unauthorized use is likely to cause confusion,” said Justice Lewis Powell.

Dorf believed another recent Court decision about the First Amendment, Matal v. Tam, could be a factor if such a dispute over almond milk reached the high court.

Also in the legal system is a federal case in Pennsylvania about the use of the words “skim milk” for a Northern Maryland creamery that wants to sell a skim-milk product across state lines. The product naturally removes cream from the milk without adding back vitamins A and D, which violates FDA regulations about product labeling. In a 2017 similar case in the 11th Circuit, the appeals court said the state of Florida couldn’t ban the use of the words “skim milk” for a fat-free milk product that didn’t have Vitamin A added back into the product. The appeals court cited First Amendment protections for the creamery.

Scott Bomboy is the editor in chief of the National Constitution Center.