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Free speech battle brews over four-letter word: milk

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Should cows be worried? Dean Foods, the largest U.S. milk producer, filed for bankruptcy this month amid the rise of plant-based alternatives. If that doesn’t alarm the herd, cowbells should go off when Holsteins hear the response from dairy executives.

Rather than rustling up some innovation to meet consumer demand, the best minds in the industry are opting for an assault on the dictionary.

That’s right.

Dairy lobbyists at FDA headquarters in Silver Spring, Maryland, are pushing for enforcement of a new definition of “milk” that excludes anything from non-dairy sources. Producers of almond milk, coconut milk, oat milk, soy milk and rice milk would have to change their labels or face imprisonment and fines of up to $1,000 per violation.

The scheme might sound familiar to Daniel Staackmann, founder of a natural food company in Chicago. He felt the wrath of the cattle and beef industry when lobbyists persuaded the Mississippi word police to criminalize calling veggie burgers “veggie burgers.”

Imagine eating a “barbeque jack fruit puck” instead.

The rule meant Mr. Staackmann’s company, Upton’s Naturals, would have to put all sorts of unnatural labels on its vegan products or stop selling them in Mississippi.

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Rather than comply, Mr. Staackmann partnered with the Institute for Justice and fought back in court. Fortunately, the state backed down before sending any veggie violators to jail.

Upton’s Naturals’ victory foreshadows a larger struggle ahead for vegetable-based milk producers.

Activists can lobby until the cows come home. But  attorney Justin Pearson says efforts to limit competition through wordplay will fall apart on First Amendment grounds.

“The government does not have the power to change the dictionary,” he says.

Pearson makes his case in the latest issue of the Georgetown Journal of Law & Public Policy, where he lays out three reasons why the dairy lobby may be left crying over spilled almond milk.

For starters, no reasonable consumer thinks that a carton labeled “almond milk” comes from cows. People have been using “milk” to describe a variety of opaque liquids for centuries. Just ask Francis Bacon, who — despite his name — was not made of pork. The British philosopher and scientist made an important observation in 1622. “There be plants that have a milk in them when they are cut,” he writes.

Pearson provides other examples, including a 14th century book of Ancient Cookery that calls for “almondes mylk.”

“Consumers so appreciated the idea that the term ‘milk’ did not necessarily mean cows’ milk that when American inventor John Callen patented his new antacid in 1818, he named it Milk of Magnesia,” Pearson says. “None of this appears to have confused anyone.”

The next factor working against the dairy lobby is a revival of First Amendment rights for commercial speech — the type of communication used in sales.

The U.S. Supreme Court stopped protecting commercial speech during the New Deal. Things bottomed out in 1942, when the court rejected a business owner’s right to distribute fliers for tours of a submarine that he kept moored on New York’s East River.

Thankfully, consumer protection groups persuaded the court to correct its error and go back to protecting commercial speech in the 1970s. Ever since, marketers and their customers have slowly regained the right to communicate freely with each other.

“Banning nondairy milks from being called nondairy milks would almost certainly be held unconstitutional,” Pearson says.


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