FDA is requesting information on consumer perception of plant-based dairy alternatives. In other words, whether consumers understand that everyday products like soy milk and almond milk are not made from dairy.
But this exercise is redundant. The Ninth Circuit and other federal courts have found unequivocally that even unsophisticated consumers understand names like soy milk, almond milk, and coconut milk. See Painter v. Blue Diamond Growers, 2018 WL 6720560 (9th Cir. 2018); Gitson v. Trader Joe's Company, 2015 WL 9121232 (N.D. Cal. 2015); Ang v. Whitewave Foods Company, 2013 WL 6492353 (N.D. Cal. 2013). As the courts are charged with making findings of both fact and law, the FDA should adopt, or otherwise defer to, these analyses.
If FDA is requesting information in consideration of a banning names like soy milk and almond milk, such a ban is unconstitutional. Labels and other marketing material are commercial speech, protected from unwarranted governmental regulation under the First Amendment. Names like soy milk and almond milk are entitled to protection under the Constitution, as they are neither false nor misleading, and do not concern unlawful activity. To pass constitutional muster, restrictions of commercial speech must be (1) narrowly tailored to (2) directly advance a (3) substantial government interest. See Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557, 561(1980).
But here, all available evidence indicates consumers are not deceived by the common-place names of plant-based dairy alternatives. As a result, banning everyday words like soy milk or almond milk does not advance any substantial government interest in consumer protection. This lack of legitimate interest is underscored by the arbitrary nature of restricting only plant-based dairy alternatives. For example, restricting names like “soy milk” and “coconut crème” but not “goat’s milk” or “peanut butter” casts doubt on consumer protection as a credible basis for any prohibition. Keep reading our constitutional analysis here.
While a prohibition of common plant-based dairy names is unconstitutional, lesser restrictions violate United States policy. “It is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people.” Executive Order No. 13,777, 82 Fed. Reg. 39 (Feb. 24, 2017). Federal courts, market data, and dairy-industry insiders confirm that the public is not confused by plant-based dairy alternatives. Diverting limited resources to needlessly regulate commonly-used names is a waste of taxpayer money.
Full comment is available here.
[Note that the comment period was extended to January 28, 2019.].