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Norton Rose Fulbright Partner Georgina Hey and Associate Isobel Taylor discuss what constitutes “milk” in Australia and overseas. They ask: Can non-dairy, plant-based drinks call themselves “milk”?
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Every trendy café these days seems to have a selection of dairy-free milk alternatives as long as a wine list, from the usual suspects like soy, coconut and almond, to more unusual new favourites like rice, hemp, pea, flax and oat. With vegan, dairy-free or plant-based diets becoming more and more popular for health, environmental, ethical or lifestyle reasons, it is unsurprising that dairy-free alternatives (and the inevitable backlash from dairy traditionalists) are on the rise.
But should these products be allowed to call themselves “milk”? In this article, we consider how this question has been answered recently in the USA, Europe and Australia.
Milking the dairy industry dry in the USA
The standard of identity set by US food regulator Food and Drug Administration (FDA) describes milk as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows”. However, much to the frustration of the dairy industry (who first brought this issue to the FDA’s attention back in 2000), this standard has typically not been strictly enforced. As a result, producers of plant-based dairy alternative beverages have been freely using the term “milk” to describe their products for decades, despite the fact that, as FDA Commissioner Scott Gottlieb quipped at a summit in July, “an almond doesn’t lactate”.
Now that plant-based imitation milk products have exploded in terms of their range, pervasiveness and mainstream popularity, it seems the FDA has finally decided that enough is enough. It recently announced that it intends to start enforcing the strict, traditional definition of “milk”, reflecting a concern that consumers might be misled about the nutritional properties of plant-based dairy alternatives.
The FDA is currently seeking public comment on the matter before issuing new guidance on the use of the word “milk”. It remains to be seen whether the existing narrow standard will be retained (as the dairy industry hopes) or whether the new guidance will feature an updated standard, which arguably reflects evolving consumer understandings of the meaning of the word ‘milk’.
TofuTown gets cheesed off in Europe
The FDA announcement comes after the European Court of Justice (ECJ) handed down a preliminary ruling last year, regarding the advertising and promotion of plant-based products using dairy designations.[1]
A German company called TofuTown came under fire for selling products with names like “tofu butter”, “plant cheese” and “rice spray cream” from the Verband Sozialer Wettbewerb (the German equivalent of the Australian Competition and Consumer Commission). The Verband Sozialer Wettbewerb asked the ECJ to interpret EU legislation regarding the use of designations for milk and other dairy-based products to assist in determining whether TofuTown’s product names were in violation.[2] This legislation reserves the use of terms including “milk”, “cream”, “butter”, “cheese” and “yoghurt” for products made from mammary secretions (with some named exceptions such as “peanut butter”), giving the dairy industry an effective monopoly over these words.
For its part, TofuTown argued that the way in which consumers understand words like “milk” has changed in light of the increased use of the word to describe plant-based milk alternatives in recent years. TofuTown argued that using words which have been traditionally associated with dairy products in conjunction with qualifiers such as “tofu”, “veggie” or “rice” to indicate the plant-based origin of the products meant its advertising would not confuse consumers.
The ECJ did not agree, holding that the fact that TofuTown had added descriptors did not prevent them from infringing the regulations, as the likelihood of consumer confusion could ultimately not be excluded.
Australia: the land of milk and honey?
Under the Australia New Zealand Food Standards Code, as in the US, milk is defined as “the mammary secretion of milking animals.”[3] The Code also requires that “if a food name is used in connection with the sale of a food (for example in the labelling), the sale is taken to be a sale of the food as the named food unless the context makes it clear that this is not the intention” (emphasis added).[4] Interestingly, one of the specific examples provided under this section states that if the context within which foods such as soy milk or soy ice cream are sold is indicated by use of the word “soy” in the name, this will be sufficient to indicate that the product is not a dairy product to which a dairy standard applies.
In 2017, the Advertising Standards Board (now called the Ad Standards Community Panel) dismissed a consumer complaint against a Vitasoy advertisement picturing oat, coconut, rice, almond and soy products and describing them as “milk”.[5] The complainant argued that “you cannot milk an Oat, like you can a cow. To base a whole advertisement around a lie, and a voiceover that says MILK, MILK, MILK, MILK over and over again is misleading. It just isn’t true”.
Vitasoy responded that consumers are familiar with the use of the term “milk” to describe plant-based alternatives that are milky in colour, texture and often used as milk substitutes. It relied upon the above-quoted Food Standard as well as the Macquarie Dictionary definition for milk, which defines milk as both the “white liquid secreted by the mammary glands of female mammals” and “liquid obtained by crushing parts of plants as beans or nuts or tubers”.
The Board considered whether the advertisement breached the AANA Food and Beverages Advertising and Marketing Communications Code, particularly whether the advertisement was false or misleading. The Board ultimately concluded that the advertisement was not misleading or deceptive in its promotion of the plant-based milk products, and specifically noted that most members of the community would accept and recognise plant-based “milk” products as milk.
While lacking the judicial force of a Court ruling, the dismissal of the complaint suggests that, at least in the Board’s eyes, the wider community understands that the word “milk” can have multiple meanings, not limited to dairy milk. The Board also seems to ascribe to the average Australian consumer the basic level of intelligence required to recognise that a product labelled “almond milk” is made with (non-lactating) almonds, a level of confidence that apparently the FDA and the ECJ do not share!
Takeaway comment
Different approaches have therefore emerged around who can refer to their products as ‘milk. Any plant based ‘milk’ producers will need to ensure their goods are accordingly compliant with local practice in any jurisdictions where their goods are available.
For now, in Australia at least, it’s full steam ahead, while in the US and the EU, producers of plant based ‘milk’ will have to be careful about how they describe their plant-based-dairy-free-alternatives-to-milk!
Georgina Hey is an intellectual property lawyer specialising in all aspects of trade mark brand and portfolio management. Her goal is to work closely with clients to ensure their brands are well cared for and their brand value is maintained. This includes working with clients to develop new brand clearance and protection strategies, advising on infringement issues, managing trade mark oppositions, advising on trade mark issues relating to the validity of registrations and intellectual property ownership structures, managing intellectual property issues for the acquisition and divestment of large portfolios (both pre and post completion), and implementing strategies to manage worldwide trade mark and domain name portfolios in a commercially efficient and effective manner.
Georgina regularly lectures and publishes on a wide range of topics, including developments in trade mark law, domain names, geographic indications, advertising clearance issues and how these legal developments interact with commercial business. In addition to being an admitted solicitor, Georgina is a registered Trade Marks Attorney and has a Masters in Intellectual Property Law, as well as a Graduate Diploma in Trade Mark Law and Practice, from the University of Technology, Sydney. Georgina was a Recommended Lawyer, Intellectual Property Asia Pacific Legal 500, and Euromoney, Australasian Woman in Business Law Awards, nominated ‘Rising Star’ in IP. Contact Georgina at Georgina.hey@nortonrosefulbright.com
Isobel Taylor is an intellectual property lawyer based in Sydney. Her work spans across all areas of intellectual property, including trade mark protection, enforcement and commercialisation, corporate transactions involving the transfer of intellectual property assets, and drafting commercial arrangements. She has also been involved in assisting with large-scale litigation matters covering a range of areas of IP. Isobel has experience in trade mark portfolio management and brand protection, assisting in the management of the IP assets of leading global and Australian brands. She regularly publishes articles and legal updates on current topics of IP law and practice in Australia and the impacts of legal and regulatory developments on commercial business. Contact Isobel at Isobel.taylor@nortonrosefulbright.com
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[1] Court of Justice of the European Union Case C-422/16 Verband Sozialer Wettbewerb eV v TofuTown.com GmbH.
[2] Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671).
[3] Australia New Zealand Food Standards Code, Standard 2.5.1.
[4] Australia New Zealand Food Standards Code, Standard 1.1.1–13(4).
