On April 29, 2018, Food and Drug Administration Commissioner Scott Gottlieb told a U.S. Senate panel that the agency has “exercised enforcement discretion” when it comes to holding plant-based drink manufacturers accountable for mislabeling their products as “milk.” Federal standards, by the way, define milk as a product sourced from mammals.
I first became aware of this term in a General Accounting Office (GAO) report on ultra-filtered milk released on March 6, 2001, in which the original language accused FDA of “withholding enforcement” relative to “standards of identity” and labeling for dairy products. FDA objected to this terminology, and it was replaced by “exercise enforcement discretion.” Over the past 20-plus years, many efforts have been made to change “standard of identity” rules and/or allow ultra-filtered milk or milk protein concentrate (MPC) to be used in cheese without identifying it on the label.
On Aug. 11, 2017, the FDA publicly renewed its policy to “exercise enforcement discretion” relative to violations of standardized cheese recipes and inaccurate ingredient listings on product labeling.
So what rules do FDA enforce related to milk? In a June 2018 American Agriculturist story “Skim milk an imitation dairy product? Say it ain’t so,” FDA requires pasteurized milk that contains less fat than whole milk have vitamins A & D added. If these synthetic vitamins are not added, it must be labeled as “imitation milk” or “imitation milk product” if it is sold across state lines. Obviously, there is nothing “imitation” about pure milk with nothing added.
This is truly one of the most bizarre rules that I have heard of but one that FDA seems willing to enforce, especially when it’s only a small business such as South Mountain Creamery of Middletown, Md., which on April 5, 2018, filed a lawsuit against the U.S. Food and Drug Administration in U.S. district court, Harrisburg, Pa.