A lawsuit against a plant-based product manufacturer raised the issue of whether plant-based products, such as those labeled as soymilk or almond milk, have to be labeled as "imitation" products when food contains less protein or essential vitamins or minerals than the original product (21 C.F.R. § 101.3(e)). The complaint alleged that plant-based "milk" products mislead the consumer as they are not milk as defined by FDA ("the lacteal secretions [...] obtained by the complete milking of one or more healthy cows") and are nutritionally inferior to cow milk products. A California court decided to stay and defer the case to the FDA.

Previous decisions from other courts in California have rejected that argument. For instance, one court held that it is "patently implausible" the consumer would be misled by "almond milk" as the products bear an appropriate qualifier—"almond." That court noted that "if the consumer is concerned about the nutritious qualities of the product, they can read the nutrition label." [add appropriate link: Cynthia v. Blue Diamond Growers (document in PDF)].

It is not clear whether FDA will decide on this issue in the near future. A citizen petition was submitted by the Good Food Institute in March 2017, and FDA responded it could not respond to the petition within the mandated 180 days of its receipt because of "other agency competing priorities." FDA did not provide a certain date by which it would respond to the petition, which requested FDA to issue regulations clarifying how foods may be named by reference to the names of other "traditional" foods in a manner that makes clear to consumers their distinct origins or properties. FDA provided a similar response to Soyfoods Association of America, which submitted a citizen petition in 1997 requesting FDA to recognize "soymilk" as the established common or usual name to be used on labels and other labeling to identify beverages of this nature.

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