Some in the dairy industry have proposed a solution in search of a problem; they want the federal government to ban the term almond milk. As a farmer, I find disconcerting the kind of family feud that this ill-conceived idea is igniting in California; milk is the largest agricultural commodity in the state and almonds are the third largest. Michal Dykes, the CEO of the International Dairy Food Association, whose food company members sell both products, had it right when he said at a Congressional hearing, that proposal “tends to pit farmer against farmer.”
Almond milk, as well as soy milk and other such products, have been on the market for decades. So, why the sudden interest in tripping up California’s almond farmers with such an unfair and ill-conceived regulation? It’s intended to put the federal government’s thumb on the scale in favor of dairy producers.
Almond milk retail sales are up 61 percent over the past five years, while milk has seen a drop of about 8 percent over the same period. This trend in milk consumption’s decline, however, is the symptom of a broader change in the market. It happens to coincide with the increasing popularity of all non-dairy beverages. Cold brew coffee and kombucha, like almond milk, are all experiencing double digit growth. Consumption of bottled water – sparkling, flavored, and filtered – as well as sports and energy drinks all are outpacing milk consumption growth.
Even high protein dairy drinks are outpacing beverage milk sales. That’s the marketplace at work. It is not a valid reason to regulate against consumers expressing their preferences in taste, quality, nutrition and convenience of use.
Indeed, for his part FDA Commission Scott Gottlieb has said he sees a food market “that’s actively trying to respond to consumer expectations” and that food labeling regulations should empower consumers. Outlawing the common name “almond milk” would be a major setback to the Commissioner’s stated goal.
Even the dairy industry understands the changing marketplace, which is why in 2013 it petitioned the FDA to change the so-called standards of identity (i.e. the regulatory definition for product names) for 17 different milk and cream products so they could make them more appealing to consumers. That’s also why the industry in 1994 sought a change to the standard of identity to allow what then had to be labeled as ice milk to be packaged and labeled as low fat ice cream.
When it comes to the standard of identity for beverage milk, however, the dairy industry wants to turn back the clock in a vain attempt to relive the good old days before 1970 – the milestone when milk consumption started a near half century decline. The dairy industry’s campaign is based on the implausible notion that consumers are confused by the term almond milk. Thank goodness the Courts have a higher opinion of consumers and their ability to make their own decisions.
In a case brought against Blue Diamond’s Almond Breeze almond milk, Judge Steven Wilson of the U.S. District Court for Central California wrote “no reasonable consumer would be misled” by the term almond milk. His opinion followed a similar decision in 2013 from Judge Samuel Conti of the U.S. District County for Northern California who dismissed, with prejudice, a class action suit against the legitimate, descriptive labeling of almond milk and soy milk. Judge Conti wrote that the consumer confusion argument “stretches the bounds of credulity” and such logic would mean that consumers might believe “that e-books are made of paper.”
Unnecessary restrictions on common food names would open a Pandora’s Box of federal regulatory red tape. Consider the potential fate of such long standing staples as peanut butter, veggie burgers, and turkey bacon. This over-regulation of food product common names won’t benefit consumers, nor change their preferences. Further, at the end of the day, it will not help farmers.
John Thoming is a second generation farmer from Tracy California. He farms approximately 1,080 acres of almonds with his brother and nephew and serves as Blue Diamond cooperative’s representative on the California Almond Board.