May 4, 2020 1:24PM

Yes, Virginia, Almond Milk Can Be Called Milk

Back in 2018, my colleague Inu Manak and I wrote about efforts to protect dairy producers from their non‐​dairy competitors by keeping the word “milk” off the competitors’ products. The goal is to make it more difficult for soy/​almond/​oat/​etc. milk products to compete with cow milk products, by requiring that non‐​dairy producers call their products “drink” or “beverage” instead of “milk.” Some dairy industry folks in Virginia recently tried this via so‐​called “dairy purity” legislation that would define milk as:

the lacteal secretion, practically free of colostrum, obtained by the complete milking of a healthy hooved mammal, including any member of the order Cetartiodactyla, including a member of the family (i) Bovidae, including cattle, water buffalo, sheep, goats, and yaks; (ii) Cervidae, including deer, reindeer, and moose; and (iii) Equidae, including horses and donkeys.

Thus, if you can get your hands on some moose milk, you can call it milk. But soy/​almond/​oat/​etc. milk producers would have to find another term.

Of course, as Inu and I noted, there are actual definitions of milk already, which are much broader, and include the following: “Any of various potable liquids resembling milk, such as coconut milk or soymilk.” But the dairy industry wanted to redefine the word in a way that gives it a commercial advantage:

“This was a bill that was brought to us by the dairy industry. We have been losing cattle farms at a very rapid rate in Virginia. You can argue the merits of the competition of what constitutes milk, and whether people drink milk the way we used to when we were kids, but the bottom line is they are trying to preserve their unique brand,” said Sen. Chap Petersen of Fairfax City.

They came close to succeeding, but fortunately, they were defeated at the last minute with an executive veto. Here’s how it played out.

The Daily News‐​Record described the origins of the legislation as follows:

For decades, dairy farmers have been fighting over what is and isn’t milk as plant‐​based beverages have been using the name “milk” in their labeling. In grocery stores the different products can be found on the same shelf, making it difficult to separate what comes from an animal and what comes from plants, critics say.

In an effort to change that, Del. Barry Knight, R‐​Chesapeake, filed House Bill 119 that would define milk as the “lacteal secretion, practically free of colostrums, obtained by the complete milking of a healthy hooved mammal.”

Any beverage being labeled as milk that fails to meet the proposed definition would be prohibited.

Showing their support to the agricultural community, Del. Chris Runion, R‐​Bridgewater, became a chief co‐​patron to the legislation and Del. Tony Wilt, R‐​Broadway, also became a sponsor.

Runion said in a previous interview with the Daily News‐​Record that he added his name to the bill because of whom he represents in the Valley.

Early on, it seemed that the industry might succeed. The bill passed the Virginia House by 66 to 32 and it passed the Senate by 24 to 16.

But then Virginia Governor Ralph Northam stepped in with a veto, offering the following explanation:

Pursuant to Article V, Section 6, of the Constitution of Virginia, I veto House Bill 119, which defines “milk” as the lacteal secretion of a healthy hooved mammal and provides that a food product would be unlawfully misbranded if it fails to meet that definition.

    Eliminating the ability to label certain food products with the term “milk” could hinder some businesses’ ability to thrive in Virginia. This bill likely conflicts with both the United States Constitution and the Constitution of Virginia and each’s protection of commercial speech.

      Accordingly, I veto this bill.

      Yes, the statute would have hurt businesses, and it would have conflicted with speech protections. In addition, it would have misled consumers who are familiar with almond milk and other types of milk and expect to see them labeled as such.

      There was some talk of a legislative override of the veto, but this attempt ultimately failed. So for now, Virginia is a safe space for all the milks. Nonetheless, the battle over milk definitions is likely to continue.

      (It’s worth noting that the legislation would not have gone into effect until 11 of 14 other states in the Southern region also passed similar legislation six months before, after, or on Oct. 1, 2029. But other states have passed similar legislation, so each step in that direction is a bad one).