What Is the Dairy Pride Act and What Legal Issues Could It Face?

“Only actual milk should be called milk in order to avoid misleading consumers.”  “It should not be called milk because it is not milk.”  This is the basic premise behind a bill (S. 130) pending before the United States Senate titled the “Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese To Promote Regular Intake of Dairy Everyday Act” or abbreviated as the “DAIRY PRIDE Act.”

This bill was introduced by Senator Tammy Baldwin, a Democrat from Wisconsin. [Read full text here.]  Citing findings of the U.S. Department of Health and Human Services and the  U.S. Department of Agriculture regarding the importance of milk and other dairy products in people’s diets, and claiming that “imitation dairy products” such as plant-based products derived from rice, nuts, soybeans, and other foods do not contain the same nutritional values, this bill aims to prevent “imitation dairy products” from being labeled as such.  The Bill claims that such labeling is misleading to consumers of the products.

In light of this, the Bill would allow food to utilize a “market name” for a dairy product such as “milk” or “ice cream” or “cheese” only if “contains as a primary ingredient, or is derived from, the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more hooved animals.”  This definition is not new, it actually is from current FDA regulations.

Products that violate these proposed requirements would be deemed “misbranded” under federal law, and violators could be subject to monetary fines and potential jail time.

Proponents of the bill argue that it prevents consumer confusion regarding dairy products.  Dairy farmers supporting the bill believe that, particularly given difficult economic times facing the industry, it is unfair for plant-based products to compare themselves to dairy products, especially given their lack of they key nutritional benefits of milk.

On the other hand, opponents of the bill say that consumers are not mislead by labels like “soy milk,” but know exactly what they are purchasing.  Rather than looking at the contents of a product to define the proper label, at least one group argues, it should be the use of the product that is paramount.  Thus, if soy milk is utilized in the same way as cow’s milk, both should be free to call the products milk.

If the bill passes, it will almost certainly face legal challenge.  Free speech challenges are already being discussed in relation to the DAIRY PRIDE Act.  The Good Food Institute, for example, has stated on its website that if the bill passes, they will challenge it in court.  Specifically, they allege, the bill would violate the First Amendment by improperly restricting commercial speech.

Under current law, the First Amendment is applicable to commercial speech, but it is less protected than other forms.  For example, if commercial speech is deemed false or misleading, it is not entitled to any First Amendment protection.  This means that if a court were to find that labeling a plant-based product as soy milk was misleading, the Constitution would offer no protection to the soy company.  If, however, a court were to find the use of milk was not misleading, then constitutional protections would apply.

If the constitutional protections did apply, content based restrictions on commercial speech—such as prohibiting the use of the word “milk” for plant-based products—is allowed if it is based on an important government interest and the means are substantially related to that interest.  It would be left to a court to determine whether the government has an important interest inn prohibiting the use of “milk” when plant-based products are involved and whether the prohibition on such use is substantially related to that important interest.

For now, the dairy industry will have to wait and see whether the bill makes its way through Congress and, if so, is signed by President Trump.  But even if those hurdles are successfully navigated, it is likely that the courthouse will be the next step in the journey.

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