The White House Office of Management and Budget (OMB) received FDA’s proposed guidance on “Labeling of Plant-based Milk Alternatives and Voluntary Nutrient Statements” on March 31, 2022. The draft guidance, which has not been publicly released, comes several years after the FDA requested comments from the public regarding the labeling of plant-based dairy alternatives and the standards of identity for dairy products.

In response, a group of bi-partisan lawmakers has sent a letter to OMB which urges the agency to reject the draft guidance to the extent that it “asks plant-based milk to identity differences without doing the same for animal milk.” For example, it would appear that the lawmakers would object to a guidance that adopted (to any degree) the Center for Science in the Public Interest’s suggestion that non-nutritionally equivalent plant-based dairy products bear a front-of-pack labeling disclosure or the National Milk Producers Association’s petition requesting “imitation” labeling for nutritionally inferior dairy alternatives. Notably, the lawmakers’ letter appears to take as a given that non-dairy alternatives will include qualifying plant-based terms (e.g., soymilk) and cites to a 9^th Circuit decision which held that such qualifiers mitigated concerns about consumer confusion.

The last several years have included legal actions at all levels including in the courts (see e.g., above-cited 9^th Circuit decision and Mikoyo’s vegan butter decision), in state legislatures (see e.g., Virginia and Wisconsin), and in Congress (see Dairy Pride Act). Whether FDA action, including issuance of the draft guidance, will resolve these issues or simply prompt further litigation and/or Congressional action remains to be seen. We are not aware of any timetable for OMB’s review, but we will continue to monitor and report on the guidance and related issues, which are of vital importance to many of our clients.

Nicholas S. Prust, Natalie E. Rainer, Frederick A. Stearns also contributed to this article.