Masquerading milk no threat

We’ve had no shortage of goofiness at the General Assembly in the past few weeks. And we’re not just talking about the recently convened short session, which seems to have little purpose other than trying to fix embarrassing mistakes in the election process the same General Assembly has made over the past two years.

Meantime, federal regulators are looking at a controversy dealt with in the General Assembly’s farm bill regarding non-dairy beverages labeled milk. And state Agriculture Commissioner Steve Troxler got in on the act.

The farm bill became law in late June over Gov. Roy Cooper’s veto. It includes a provision defining milk, for commercial labeling purposes, as “the lacteal secretion … obtained by the complete milking of one or more healthy hooved mammals.” Hooved mammals include, generally speaking, the family groups of cattle and sheep, camels, deer, and horses.

It bans “the sale of plant-based beverages mislabeled as milk,” including beverages made from soybeans, almonds, or coconuts. For example, Blue Diamond Growers’ Almond Breeze would have to be labeled “almond beverage” rather than “almond milk.” DanoneWave couldn’t market its Silk beverage as “soy milk.” It would become “soy beverage.”

This is yet another example of lawmakers using the coercive power of government to protect a politically powerful — though important — industry by planting irrational fears that greedy businesses are deceiving consumers. It’s protectionism based on an argument that individual North Carolinians are too dumb to know what they’re buying.

The Food and Drug Administration has become interested, as well. For years, the FDA has defined milk as “lacteal secretion … of cows,” but it hasn’t enforced the rule. It may start.

Commissioner Scott Gottlieb launched a hearing process in late July to crack down on plant-based beverages “masquerading” as milk. He’s not going after goat milk or sheep milk, even though they violate the federal rule just as much as Almond Breeze and Silk do. Plant-based beverages, however, seem to pose some special threat.

Troxler issued a press release Wednesday, urging Gottlieb to get with the program.

The dairy industry’s justifications for enforcement don’t hold, er, water. The packages of these beverages list the ingredients. For original Almond Breeze, they begin with filtered water, almonds, and evaporated cane juice.

And anyone who’s seen a Tarzan movie, or endured an episode of “Gilligan’s Island,” should know that coconut milk doesn’t come from an animal.

In 2013, a federal judge in California got it right. He dismissed “with prejudice” a class-action lawsuit in which the plaintiffs tried to enforce the FDA definition. U.S. District Court Judge Samuel Conti threw out the case, saying, “a reasonable consumer would view the terms ‘soy milk’ and ‘almond milk,’ disregard the first words in the names, and assume that the beverages come from cows … stretches credulity. Under [this] logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”

And don’t get me started about peanut butter or root beer.

If the FDA decides to make a big deal about milk labels, the rulemaking process may take at least a year. And litigation will follow if the feds place any new restrictions on plant-based beverages.

Cornell law professor Michael Dorf thinks any ban on “mislabeled” milk products could be tossed as a violation of the First Amendment. For the legal website Justia, Dorf noted the regulation isn’t an attempt to protect public safety or even a plausible argument about fraud.

Instead, Dorf wrote: “These are efforts of a powerful industry to use the levers of government to suppress the [claims] of the makers of plant-based milk — that their products are healthier, better for the environment, and do not require the harmful exploitation of millions of cows or other ‘hooved mammals.’”

If the state’s law or the federal rule is enforced, the only thing we know for certain is that lawyers will be paid. And well. And since the government’s involved, taxpayers will get the tab.

This is America, after all.

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Rick Henderson is editor-in-chief of the Carolina Journal.

Rick Henderson is editor-in-chief of the Carolina Journal.