Author: Elizabeth Rumley

In the past 15 years, several states have passed laws regarding the amount of space that specific types of farm animals- pregnant sows, veal calves and laying hens- must be given.  The constitutionality of one of these laws, passed as a ballot proposal in California, will be considered in October by the Supreme Court of the United States (“SCOTUS”). 

“Prop 12” was passed in 2018 and required that eggs produced and sold in California be from cage-free hens.  Additionally, it required that pork and veal sold in California come from farms without veal crates or gestation crates.  These requirements apply not only to California producers, but also to producers across the country (and the world) selling products into the large California market.  While Prop 12 took effect in January 2022, a California state court has prevented its enforcement until six months after the regulations outlining its administration are finalized.  

Prop 12 was also challenged in federal court.  In one case, the National Pork Producers Council and American Farm Bureau Federation (“NPPC/AFBF”) argued that it violates the “commerce clause” to the United States Constitution.  The commerce clause gives Congress the right to pass laws affecting multiple states.  On the flip side, the “dormant commerce clause” limits state legislatures, with some exceptions, to only passing laws affecting people located in that specific state.  The NPPC/AFBF case argued that Prop 12 acted as a barrier to trade between states by imposing obligations on out-of-state competitors in order to assist local producers.

The plaintiffs lost at both the federal district court and the Ninth Circuit Court of Appeals.  However, NPPC/AFBF requested that SCOTUS hear the appeal and that request was accepted.  It will be heard at SCOTUS on October 11^th.  To see other states with similar statutes, click here.      

Rumley, Elizabeth. “U.S. Supreme Court to Hear Proposition 12 Case“. Southern Ag Today 2(29.5). July 15, 2022. Permalink

The Food and Drug Administration (“FDA”) is responsible for the labeling of dairy products, among other things.  In part, it regulates labels through the creation of “standards of identity,” which outline how specific words may be used.  FDA is given authority in the Federal Food Drug and Cosmetic Act (“FFDCA”) to enforce those standards.  Under the FFDCA, a food is misbranded if it is labeled using a word for which a standard of identity has been established, but the food does not match the requirements.  In these situations, FDA has a range of options from warning letters or a seizure of the mislabeled product up to fines or even criminal prosecution.

In 2018, FDA asked for comments about the labeling of plant-based products with names of dairy foods.  They wanted to learn more about how consumers use them and how they understand terms such as “milk” or “yogurt” when included in the product names.    

Since that time, FDA changed the standard of identity for “yogurt.”  As of this July, “yogurt” is limited to the food produced by culturing at least one “basic dairy ingredient” and any “optional dairy ingredients” along with a “characterizing bacterial culture.”  21 CFR § 131.200.  Based on that definition,  non-dairy alternatives will be excluded from using the word “yogurt.”  

The recent change to the standard for yogurt is in contrast to the standard of identity for milk, which has been in place for decades.  “Milk” is “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” 21 CFR § 131.110.  Based on that definition standard, non-dairy substitutes should not be able to use the term. However, FDA has discretion to decide what standards to focus its enforcement resources on, and so far, the agency has not chosen to strictly enforce the standard of identity for milk. As a result, non-dairy substitutes made of almonds, soy, oats, or rice claim the “milk” label alongside the dairy variety. 

FDA intends to submit a draft guidance for industry regarding the labeling of plant-based milk alternatives by the end of June 2022.  The guidance, along with any changes to the regulatory standard of identity, will be important in determining whether plant-based products may continue use the term “milk.”  Just as important for dairy producers, though, will be whether the FDA intends to enforce the standards as written, or allow continued expansion of the terms.   

Rumley, Beth. “What’s in A Name? Standards of Identity for “Milk” & “Yogurt.” Southern Ag Today 1(46.5). November 12, 2021. Permalink