Government Must Stop Protecting Cow Milk Producers from Competition

Lawmakers try to further restrict who can use the term 'milk.'


Anna Krivitskaia /

Last month more than 30 Members of Congress wrote a letter to the FDA asking the agency to require makers of non-dairy milks—including almond, rice, and soy—to stop using the term "milk" to describe their milk. The congressional letter is ridiculous, and reeks of a mix of unconstitutional protectionism and unconstitutional restrictions on free speech.

Rep. Peter Welch (D-Vermont), who's spearheading the misguided effort, says he's pushing the FDA to act in order "to protect Vermont's dairy farmers." Such action is neither part of the FDA's mission nor job. Neither is it within the agency's power.

Thankfully, others agree—and are pushing back.

"Terms such as 'soymilk' and 'almond milk' clearly and accurately describe these plant-based beverages," says Nicole Negowetti, policy director with the Good Food Institute, which works to promote and defend plant-based foods, in an email to me this week. "This letter from lawmakers is a thinly veiled attempt to appease the dairy industry, discount consumer choice, and undermine competition by restricting free speech."

The dairy industry has been making a living out of seeking government protection against its competitors since, perhaps, the dawn of time. And the federal government (along with state governments) has a long and sordid history of obliging the industry. Examples are this are so legion, and provide such foul evidence of ways the government wrongly protects one segment of the food industry, that I typically devote a whole week of the Food Law & Policy classes I teach to issues of dairy protectionism.

Dairy prices too low? No worries. The USDA will buy up your surplus cheese, or pay Domino's to develop a cheesier pizza. Don't like non-dairy coffee creamers competing with your cow-milk creamer? The state will force your competitor to call its products by a bizarre, made-up name—"melloream"—that no one would ever buy. Problem solved.

No lesser an authority than the U.S. Supreme Court has weighed in on government protection of dairy producers. In the late 1890s, the Court got it right, overturning a trio of mind-numbingly awful states' laws restricting the production and sale of margarine. In the 1930s, in a case many scholars argue forms much of the basis of modern law—take that for exactly what it's worth—the Court ruled Congress had the power to ban the sale of a dairy-milk substitute, Milnut.

More recently, powerful dairy groups like the National Milk Producers Federation have attempted to use their considerable clout, as I note in my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, to compel the FDA "to bar foods such as almond milk, soy milk, and other plant-based drinks from using the term 'milk' to describe their non-dairy milk."

Enter Rep. Welch and his colleagues, to the rescue.

I have an alternate proposal: If the FDA is going to take a hard look at use of the term "milk," it should probably look past soy milk and almond milk and look instead at the carve-out that exists for the unmodified use of the term by dairy cow makers alone. "Milk" today means cow's milk and cow's milk alone. It shouldn't.

Americans are drinking many types of milk they've long consumed—cow, goat, camel, etc.—and newer types as well, including almond, coconut, hemp, rice, and soy. Rules that reserve use of the term "milk" for dairy-cow milk alone, at a time when Americans drink so many different types of milks, may be misleading. Perhaps rules should be established that force dairy-cow makers to modify their use of the term "milk" with the word "cow," in a way that would be consistent with every other use of the term ("goat milk," "almond milk," etc.).

Perhaps not, too. While I'm confident my argument in favor of such rules is stronger than that of those like Rep. Welch who have set their sights on soy milk, we don't need more dumb rules. We need fewer.

That said, from this day forward, without being compelled by government, I think I'll use the term "cow milk" in my own writings to refer to milk that comes from dairy cows so as to minimize confusion with goat milk, almond milk, and other milks. I encourage my fellow writers and consumers to do the same.

This week, the L.A. Times editorial board weighed in on a potential FDA crackdown, and came down clearly on the side of consumers and producers of non-dairy milks. "There are people who, for whatever reason, don't like the taste of cow's milk and are pleased to have alternatives available," the L.A. Times wrote.

Consumers aren't stupid.

"No reasonable consumer would confuse soymilk or almond milk with cow's milk," the Good Food Institute's Negowetti tells me. "In fact, demand for plant-based milks is on the rise precisely because consumers are seeking out dairy-free options."

She's right. Americans are consuming less cow milk, by their own volition, and more dairy alternatives. Is that a good thing? I don't have any opinion about that. People should eat and drink what they want—whether it's cow milk, almond milk, another milk, some combination, or no milk at all.

Government's proper role here is only to protect our right to make any and all such choices. Period. Consequently, the time is ripe to end all protections for dairy producers.

NEXT: Bill Weld's Weird Tuesday

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  1. I used to use milk of magnesia in my bowl of Froot Loops. Then I found out there’s no froot in that lying cereal.

    1. *shuts cabinet door to hide Fruitloop stash*

      It’s true, Fruitloops are a fraud, but toucan play that game.

      1. Are you cereal?

        1. Super.

          1. Al leave it there.

            1. It’s been gored to death.

              1. And yet,it’s still considered Nobel.

                1. Must be the neon glow.

      2. Since Swissy apparently ain’t here…

        *narrows gaze*

        1. For political reasons he is not allowed to partake in discussions related to cheese, army knives or Misses.

    2. I prefer malk. Especially now that it’s vitamin R fortified.

  2. If it didn’t come out of a tit it ain’t milk. Still, govt has no business telling people what words they can use.

    1. I think human milk should be renamed “breast nectar” to differentiate from cow’s milk.

    2. Moo cow fuck milk!

  3. You can thank Wickard V Filburn for all this crap.

  4. Rep. Peter Welch (D-Vermont), who’s spearheading the misguided effort

    Life imitating art once again

  5. How are they allowed to sell a product called “peanut butter”? It’s an outrage!

    1. Still amazed that body butter is used for serving long pig. Don’t get me started on apple butter!

    2. They should be a-shea-med of that.

      1. I’m getting tired of these puns. But in this case I’ll aloe it.

  6. OT: The Beach Boys’ album “Surf’s Up” is pretty terrible, yet at the same time is pretty terrific. Really blowing my mind this morning.

  7. Just bought the Kindle verrsion of your book, Baylen. It better not suck 😉

  8. It took a long time for me to figure out what almond milk was, because for a long time I assumed it meant almond flavored milk, akin to chocolate milk. I may not agree w the particular actions being complained of in the article, but I disagree w the headline. As long as gov’t includes courts, they’re going to have cases over the meaning of words used for articles of commerce. We may have disagreements as to the means used to legally decide those things, and to the relative advantages of the predictability produced by regulation vs. the impartiality of the spontaneous order of common law vs. the advantages of democratic legisl’n, but I’m not for anomistic (lawless) anarchy.

    1. I meant the headline before the jump:

      The Government Shouldn’t Meddle in What May Be Called ‘Milk’

      IMO, that’s not meddling, that’s a core fx of gov’t.

      1. that’s a core fx of gov’t.

        I agree to the extent that the word ‘milk’ is used to perpetrate a fraud. Anything beyond that is just meddling.

        1. Yes. I might disagree with requiring that milk be supplemented but i don’t have a problem with the fundamental premise that government define the terms used in interstate commerce.

  9. In general, I agree with the Libertarian position that consumers should be allowed the maximum amount of choice that the market will bear. Where I part company with Libertarians is the assertion;

    “Consumers aren’t stupid.”

    Nonsense. A casual examination of the market for just about any ‘collectable’ disproves this. I’m a collector in remission. I know. People will pay appalling amounts of money for things like the Toyota Prius that don’t make a lick of sense.

    Consumers are frequently abysmally stupid. The real issue is that, since politicians, bureaucrats, and elitists are human, there is no evidence whatsoever that they are on average any more intelligent than consumers. indeed, if history is anything to go by, they re even more likely to have n irrational bee in their collective bonnet than the general run of consumer.

    The issue isn’t that consumers aren’t stupid. The issue is that governments are no less stupid, and that consumers have a right to be stupid if they want to, rather than have the State be stupid on their behalf.

    1. Your point is a good one, and cuts to the core of liberty. Liberty isn’t the ability to do the “right” thing… it’s the ability to do the “wrong” thing.

  10. People will pay appalling amounts of money for things like the Toyota Prius that don’t make a lick of sense.

    When you buy a Prius you’re not just paying for the vehicle, you’re also paying for the smug sense of superiority and self-satisfaction. What’s that worth? Well, to the guy buying the car, the empirical evidence suggests “more than what he paid for the car”. If that were not true then he wouldn’t have bought the car, would he? It’s the same way people will pay appalling amounts of money for art work or designer clothing or jewelry – the function of a handbag isn’t necessarily simply to haul stuff around in or you might just as well carry a pillowcase.

    It’s the same way when they talk about how much illegal drug use “costs” society – they always forget to factor in the value of the pleasure the drug user gets from the drugs. Which value I would have to guess is more than the price of the drug or why else would the drug user keep buying the stuff?

    1. No amount to rational analysis will cause the majority of human behavior to make any sense whatsoever. OTOH, force people to live a ‘sensible’ life and you will make the vast majority of them miserable. The few exceptions are probably mutant ants in skin suits, and should be put to death at once.

    2. There’s at least one Prius around Palo Alto with a bumper sticker that says “Not a liberal, just a commuter.”

      When I was last buying a car, before the recent gas price collapse, my estimate was that a Prius owner would spend $30K less on gasoline over the car’s lifetime than a 20-mpg car’s owner.

      1. Probably not a good comparison. A 20 mpg is going to be a (really big) SUV or pickup truck. The comparison is a civic or corolla, both of which get north of 30 mpg, cutting your savings rather significantly.

  11. Merriam-Webster defines milk as “a fluid secreted by the mammary glands of females for the nourishment of their young”. Last time I looked, almonds don’t have mammary glands. I’m not for government over-reach or control either, but at what point is it the FDA’s job to squash mis-labeling? Words and their common perception by consumers do matter. I’m ok with calling these products “milk substitute” or something to that effect but they are not milk.

    1. Merriam-Webster defines milk as “a fluid secreted by the mammary glands of females for the nourishment of their young”.

      So cow milk is only milk as long as its fed to calves. As soon as it’s bottled for human consumption it becomes something else as we’re not the secreting mammal’s young.

      1. No, it was secreted to feed their young. We just steal it to feed ourselves. I’m not all that hung-up about it – it’s just that definitions do mean something.

        1. Then how do you explain jumbo shrimp?

        2. The typical modern cow produces far more milk than is needed for her calf. It’s hardly stealing, it’s more sort of a deal – albeit one that the cow doesn’t have a option to refuse. We provide her food, water and care, and she provides us milk.

      2. What about the milk of human kindness? Or the milk secreted by vegetables for the nurture of seeds? Hmmm.

      3. Nope. That’s not how words work. Fail.

    2. You already cleared it up by calling it almond/soy/rice milk.

      It’s like apple and Adam’s apple. This is how English works.

      1. You might want to discover how alienans predicates work.

    3. I don’t see any problem here, since there’s no intent to defraud. Non-dairy milks are primarily marketed to those who prefer not to drink cow milk (vegans, the lactose intolerant, etc.), so producers are generally quite up-front about the fact that what they’re selling isn’t cow milk. Any consumer confused by these products is probably confused beyond all hope anyway.

  12. Given the stuff the American processed-food industry calls “cheese”, this is extra-cheesy of them.

    (And yes, I know they’re supposed to call it “imitation processed cheese-like food spread” or whatever, but it’s still in bad taste.)

  13. To paraphrase a line from Thank You For Smoking: The great state of Vermont will not apologize for its milk!

  14. “Consumers aren’t stupid”

    Ask me how I know you have never worked in retail.

  15. Lamebrains like Welch can always be counted on to do stupid things for their constituents. I believe it is significant that he only corralled a few more than 30 other lamebrains to help his effort.

  16. So if you oppose a binding definition for the word ‘milk’, then you should also oppose a binding definition for the word ‘ounce’ or ‘gallon’ or any other weight/measure. In which case, there can never be any legal fraud because every dispute can simply become hesaidshesaid and it will always resolve itself in favor of whoever already has the power.

  17. This is a conspiracy to sour my milk.

  18. Milk is produced by mammals. Period. Calling anything else “milk” is corrupting language. I don’t give a rat’s butt about dairy farmers being protected from market forces, other than that someone else should not be able to usurp the name of their product for something else. Soy and almond emulsions and extracts are just that: emulsions and extracts. If the soy or almond industry wants to come up with a less “scary” word for their product, fine, but “milk” is taken.

    This fuss is really more a matter of contract law (‘what are the terms of the agreement and what do the words mean’) than about outlawing a competing product.

    Sorry BL, I think you have this one wrong.

    1. Since humans only need their own mother’s milk, I would move that bovine milk extractors should call their product ‘human milk substitute’.

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  23. The Cow milk Industry are exploiting animals for their own profit without thinking about the animals life. Male calf are treated as food and they are snatched away from their mom. Government must bring rules to regulate this and prevent Pollution in Ganges River

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