Don’t call it ‘milk’ if it doesn’t come from a hooved mammal, KY senator says
Under a bill pending in the Kentucky Senate, that white stuff you pour on your breakfast cereal better not be called “milk” unless it’s “the lacteal secretion” of a hooved mammal, and more specifically, a cow, water buffalo, sheep, goat, yak, deer, reindeer, moose, horse or donkey.
Senate Bill 81, sponsored by Sen. Matt Castlen, would set a strict definition for what food products could be labeled and sold as milk, to be enforced by the Kentucky Department of Agriculture. Liquids derived from soybeans, almonds and coconuts need not apply.
Castlen said his bill is aimed at plant-based milk that has gained a toehold in groceries while Kentucky’s dairy industry is struggling.
“The dairy industry here, just since 2005, we’ve lost about 66 percent of our dairies here in Kentucky. Being an individual born and raised on a family farm, I know the importance that they have,” said Castlen, an Owensboro Republican.
“We think it’s important that consumers in Kentucky have an understanding of what’s in the product that they’re buying,” he added. “We want to make sure that our products are labeled right.”
Eleven states have enacted food-labeling laws in recent years to target increasingly popular plant-based alternatives to meat and dairy. Lawsuits are challenging those laws in Arkansas, Missouri and Mississippi. Arkansas’ law, one of the most sweeping, imposes $1,000 fines for improperly labeled soy milk, veggie burgers, tofu dogs and cauliflower rice. That law is on hold while a federal suit proceeds.
In 2018, a federal appeals court in San Francisco upheld the dismissal of a private food-labeling lawsuit against almond milk manufacturers.
The suit alleged that almond milk makers tried to confuse consumers into thinking that their nut-based milk was the nutritional equivalent of milk from a cow, and so, under federal rules, should have been clearly identified as an imitation. But the appeals court ruled that “no reasonable consumer could be misled by the unambiguous labeling or factually accurate nutritional statements.’”
With food-labeling laws, legislators are trying to pick winners and losers at the grocery, said Amanda Howell, an attorney with the Animal Legal Defense Fund, an advocacy group that has helped challenge such laws in several states.
“The government cannot pass a law just to shore up one industry at the expense of another,” Howell said. “The fact that milk sales are sagging is not a constitutional reason to infringe on truthful commercial speech and gag the competition.”
There are federal agencies that would intercede if they believed deceptive marketing was happening in the marketplace, Howell added.
“Surveys show that consumers are not confused about what they’re getting when they buy plant-based alternatives,” Howell said. “It should be incumbent upon the government to prove that consumers are confused before they pass these sorts of restrictions. In Missouri, we filed an open records request with the attorney general’s office. They didn’t have a single consumer complaint about deceptive marketing when they passed their labeling law.”
The Kentucky Dairy Development Council, representing the industry, recommended that Kentucky pass a food-labeling bill for milk last September at a legislative hearing.
From 2005 to 2019, the number of dairy farmers in Kentucky plunged from about 1,500 to about 500, the council’s executive director, H.H. Barlow, told the Interim Joint Committee on Agriculture. In part, Barlow said, improved farming efficiencies have created a milk glut that reduced prices.
But also, fewer people are drinking milk, with some blame going to plant-based alternatives like soy milk and almond milk.
“One of the reasons fluid milk consumption is down is the alternative milks,” Barlow told the lawmakers. “So far, they are less than 5 percent of consumption. But they are a problem.”
It would help the dairy industry if plant-based liquids could not be labeled as milk anymore, he said.
“If they want to call it almond drink or almond juice, then fine. But to call it milk is a really sad situation,” Barlow said. “Milk is the secretion of an animal. I’ve never seen a tree secrete anything yet, except maybe maple syrup.”
Castlen’s bill is assigned to the Senate Agriculture Committee, of which he is vice chairman.
The senator said he does not expect a committee hearing on the bill in the immediate future because he’s still making changes to its language “to make everyone happy.”
Among other possible concerns, Kentucky’s soybean crop — one of those plants that goes into alternative milks — was worth more than $900 million in 2018, according to state data.
This story was originally published January 16, 2020 at 2:19 PM.
