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Milk-defining bill leaves sour taste for plant-based manufacturers

Plant-based milk products soon could be called something different in Virginia if a dairy bill is signed into law.

HB 119, introduced by Del. Barry Knight, R-Virginia Beach, and chief-copatroned by Del. Chris Runion, R-Bridgewater, seeks to define milk as “the lacteal secretion of a healthy hooved mammal.” Any product labeled as “milk” that doesn’t meet this definition would be deemed “unlawfully misbranded.”

Runion’s district includes parts of Albemarle, Augusta and Rockingham counties.

It is unclear how the bill would be enforced, but language within the measure directs the state Board of Agriculture and Consumer Services to implement a plan to ban all products “misbranded” as milk.

Proponents of the bill champion it as a consumer protection effort that seeks to enforce a federal definition of milk and protect a shrinking state dairy industry, while opponents see it as an attack on freedom of speech.

The bill has been passed by the state Senate and the House of Delegates and now sits on Gov. Ralph Northam’s desk.

The Good Food Institute, a nonprofit that promotes plant-based alternatives to meat and dairy, has accused the bill of being an effort to censor plant-based milk companies.

“Companies would be forced to choose between using opaque and confusing language like ‘coconut beverage’ and ‘almond juice,’ or pull out of the marketplace entirely, under the threat of fines or even jail time,” Nigel Barrella, GFI’s regulatory counsel, said in a news release.

The institute points to a December preliminary injunction from a federal judge in Arkansas that prevents that state from enforcing a similar law that makes it illegal for companies to use words such as “burger” and “sausage” to describe products that are not made from animals, such as veggie burgers. The injunction remains in effect as the lawsuit plays out.

In addition to GFI, the ACLU, ACLU of Arkansas and Animal Legal Defense Fund are involved in that legal challenge on behalf of The Tofurky Co. Plaintiffs argue the law violates the First Amendment and the Fourteenth Amendment’s due process clause by “improperly censoring truthful speech and creating consumer confusion in order to shore up the state’s meat and other industries.”

Scott Weathers, a senior policy specialist for GFI, pointed to additional cases, such as the Painter v. Blue Diamond case, in which the 9th Circuit Court of Appeals ruled that “no reasonable consumer could be misled” by the company’s labeling of almond milk.

“The court rulings — and in particular the preliminary injunction — are large signs that this legislation is censorship and does nothing to protect consumers,” he said.

However, proponents of the bill don’t see it as an issue of censorship, but rather a way of accurately informing consumers of the product they’re purchasing.

Eric Paulson, executive secretary and treasurer of the Virginia State Dairymen’s Association, said the bill is more about “clarity and truth of labeling” than clearing up any confusion about whether plant-based milk contains dairy.

“Very few people think something like almond or soy milk contains dairy but many are confused about the nutritional value,” he said. “They think it’s equal to that of milk when dairy milk can contain eight to nine times as much protein.”

The dairy industry in Virginia has been in decline for the last decade, Paulson said, and the past couple of years have been especially rough, with an average of one dairy farm closing a day last year.

Paulson believes the federal Food and Drug Administration is selectively enforcing the definition of milk. Similar to HB 119, the FDA defines milk as “the lacteal secretion, practically free of colostrum, obtained by the complete milking of one or more healthy cows,” but it has not enforced that standard when it comes to plant-based milk alternatives.

Norm Hyde from the Virginia Farm Bureau echoed similar sentiments to Paulson, pointing to the increasing decline in the state’s dairy production. Many farmers have shifted away from dairy in recent years, opting for beef or selling their cattle and land outright in what essentially amounts to retirement in an industry without pensions.

Dairy farmers have spent decades building up milk as a healthy beverage for families, and some of those farmers are concerned that plant-based alternatives are coasting off that goodwill, Hyde said.

“This is a public opinion issue as much as anything else,” he said. “This bill probably won’t bring back the dairy industry but it will make these farmers feel like their contributions are being recognized.”


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