The continued growth of the plant-based milk category is indicative of strong consumer demand and desire for options that meet their dietary, cultural, and personal needs. While the FDA’s “Draft Labeling Recommendations for Plant-based Milk Alternatives to Inform Consumers” accurately recognizes the will of the consumer in selecting plant-based milks instead of animal-based options, the recommendation to include voluntary nutrient statements is unprecedented, unwarranted, and a solution in search of a problem. 

“We commend the FDA’s acknowledgement that consumers are affirmatively choosing plant-based milks because of their many benefits for human and planetary health. However, we see many suggestions in this proposal that are unfairly burdensome to companies, and frankly, treat plant-based products differently than any other foods in the market. We look forward to sharing our feedback with FDA in the coming weeks to ensure the best outcome for our members, for our industry, and for consumers looking for options that align with their needs and values.”


The FDA’s draft guidance implies that the inherent nutritional content of plant-based milk products are somehow inferior to that of dairy milk products, despite the fact many of the nutrients boasted by animal-based milk are the result of fortification. This suggestion is not only discriminatory towards the plant-based sector—no other products, including different brands of animal-based milk, are targeted by this guidance—but it also threatens to jeopardize growth of the innovative plant-based foods industry. 

Nutritional equivalency is an inappropriate basis for distinguishing plant-based milk from animal-based milk, as different products serve a variety of intended uses. The standard of identity for milk contains no requirements concerning these “key nutrients,” and different brands of cow derived milks can have different nutritional content: One cup of whole milk and one cup of skim milk typically have different nutritional profiles. As such, the new guidance raises more questions than it answers: What nutrient levels are considered “typical”? Should cow’s milk require such a disclosure statement if it does not meet that nutritional baseline? How do these standards apply to flavored cow’s milk products? This approach would sow confusion across the industry and impose a significant administrative burden on the FDA, and that undue burden would also be felt by all manufacturers of milk products—both cow-based and plant-based. 

What the FDA is recommending now is precisely the role that existing nutritional labels already play: Giving consumers accurate, easily accessible information needed to inform their food choices and meet their unique dietary and nutritional needs. Studies in no way indicate that consumers think plant-based milks have the same nutritional content as cow’s milk; academic research has instead shown that consumers are not at all confused about the nutritional differences between cow and plant-based milk products. 

Further academic research, which examined consumers’ ability and tendency to use products’ Nutrition Facts panels, supports the fact that consumers are able to determine nutritional differences between plant-based and animal-based milk products without any more information than is currently required on their labels. 

In line with this research, courts have found that consumers recognize that plant-based milks and cow’s milk are nutritionally distinct. As one district court explained, “By using the term ‘almond milk,’ even the least sophisticated consumer would know instantly the type of product they are purchasing.  If the consumer is concerned about the nutritious qualities of the product, they can read the nutrition label…”1 In affirming this decision, the Ninth Circuit found that no reasonable person could conclude that “almond milk is ‘nutritionally inferior’ to dairy milk… as two distinct food products necessarily have different profiles.”2  

Plant-based milk is a thriving industry, and as our 2021 U.S. retail sales data revealed, this innovative segment is now the growth engine for the entire milk category—contributing $105 million in growth, while animal-based milk’s decline equated to a loss of $264 million in the overall milk category. Additionally, plant-based migration analysis research that the Plant Based Foods Institute, PBFA’s sister nonprofit organization, recently conducted with grocery titan Kroger demonstrated that 43 percent of plant-based shoppers are actively choosing plant-based milks instead of animal-based. 

The FDA’s draft guidance does not reflect consumers’ proven ability to be discerning in their food choices, and “guidance” of this nature will inevitably lead to frivolous lawsuits that will place further burden on the plant-based industry at a time when supporting continued innovation and scaling to meet rising consumer demand should be of utmost importance. PBFA is currently reviewing all of our options with our legal team to reverse this guidance and ensure the best outcome for our members, for our industry, and for consumers looking for options that align with their needs and values.

1 Painter v. Blue Diamond Growers, 2017 WL 4766510 (C.D. Cal. May 24, 2017), aff’d, 757 F. App’x 517 (9th Cir. 2018).  

2 Painter v. Blue Diamond Growers, 757 F. App’x 517, 519 (9th Cir. 2018).