DAIRY PRIDE Act

II 117TH CONGRESS 1ST SESSION S. 1346 To require enforcement against misbranded milk alternatives. IN THE SENATE OF THE UNITED STATES APRIL 22, 2021 Ms. BALDWIN (for herself, Mr. RISCH, Ms. COLLINS, Mr. CRAPO, Mr. KING, Mr. LEAHY, Ms. SMITH, and Ms. STABENOW) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions A BILL To require enforcement against misbranded milk alternatives. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Defending Against 4 Imitations and Replacements of Yogurt, Milk, and Cheese 5 To Promote Regular Intake of Dairy Everyday Act’’ or 6 the ‘‘DAIRY PRIDE Act’’. 7 SEC. 2. FINDINGS. 8 Congress finds as follows: 9 (1) Dairy products are an important part of a 10 healthy diet for both children and adults, according 11 VerDate Sep 11 2014 19:49 May 20, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1346.IS S1346 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 1346 IS to the Dietary Guidelines for Americans, 2020–2025 1 (referred to in this section as the ‘‘Dietary Guide- 2 lines’’) published by the Department of Agriculture 3 and the Department of Health and Human Services. 4 The Dietary Guidelines state that most Americans 5 are not meeting recommended intake for the dairy 6 food group. 7 (2) Consumption of dairy foods provides numer- 8 ous health benefits, including lowering the risk of di- 9 abetes, metabolic syndrome, cardiovascular disease, 10 and obesity. 11 (3) The Dietary Guidelines state that dairy 12 foods are sources of critical nutrients for human 13 health, including vitamin D, calcium, and potassium, 14 all of which are under consumed by people of the 15 United States. Even though average consumption 16 falls short of amounts recommended by the Food 17 Patterns of the Department of Agriculture, on aver- 18 age across the calorie levels dairy foods still con- 19 tribute about 68 percent of calcium, 76 percent of 20 vitamin D, and 31 percent of magnesium. 21 (4) Beginning at age 9 and persisting through- 22 out every subsequent life-stage, individuals in the 23 United States on average fail to meet the rec- 24 ommended amount of dairy intake for their age 25 VerDate Sep 11 2014 19:49 May 20, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1346.IS S1346 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 1346 IS group, according to the Dietary Guidelines. The Die- 1 tary Guidelines note the gap between recommended 2 and current intake of dairy widens throughout life 3 stages and find the age-related decreasing intake of 4 dairy for youth ages 2 through 18 to be ‘‘notable 5 and concerning’’. Overall, approximately 90 percent 6 of the entire population of the United States does 7 not meet the daily dairy intake recommendation. 8 (5) The Dietary Guidelines state that the nutri- 9 ent composition of dairy foods highlights the impor- 10 tance of adequate consumption, finding this to be es- 11 pecially relevant for the intake of calcium and vita- 12 min D throughout an individual’s life. The Dietary 13 Guidelines note that calcium and vitamin D are im- 14 portant at any age, that adolescents have an in- 15 creased need for these nutrients to support accrual 16 of bone mass, and that adults should give particular 17 attention to consuming adequate amounts of foods 18 with these nutrients to promote optimal bone health 19 and prevent the onset of osteoporosis. Yet, close to 20 30 percent of men and 60 percent of women older 21 than age 19 do not consume enough calcium, and 22 more than 90 percent do not consume enough vita- 23 min D. According to the Dietary Guidelines, dietary 24 patterns that do not meet recommended consump- 25 VerDate Sep 11 2014 19:49 May 20, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1346.IS S1346 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 1346 IS tion amounts for food groups and subgroups which 1 include sources of calcium and vitamin D, such as 2 dairy foods, contribute to low intake of these nutri- 3 ents. 4 (6) The Dietary Guidelines state that many 5 products sold as ‘‘milks’’ but made from plants (e.g., 6 almond, rice, coconut, oat, and hemp ‘‘milks’’) do 7 not have an overall nutritional content similar to 8 real milk and that most have significantly less pro- 9 tein than real milk and are not always fortified with 10 calcium and vitamin D. The amount of calcium per 11 calorie is lower for most plant-based alternative milk 12 products. To obtain the amount of calcium contained 13 in one cup of nonfat fluid milk from a plant-based 14 milk alternative, the portion size and calorie intake 15 must be greater. 16 (7) Similarly, imitation dairy products, such as 17 plant-based products derived from rice, nuts, hemp, 18 coconut, algae, and other foods that imitate milk, 19 yogurt, and cheese, often do not provide the same 20 nutrition content as real cheese and yogurt derived 21 from dairy cows. 22 (8) Plant-based products labeled as milk are 23 misleading to consumers. 24 VerDate Sep 11 2014 19:49 May 20, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1346.IS S1346 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 1346 IS (9) The Food and Drug Administration has 1 regulations that define milk and cream as the ‘‘lac- 2 teal secretion, practically free from colostrum, ob- 3 tained by the complete milking of one or more 4 healthy cows’’ (section 131.110 of title 21, Code of 5 Federal Regulations). This definition further applies 6 to milk used to create other dairy products, includ- 7 ing yogurt and cheese, as specified in sections 131 8 and 133 of title 21, Code of Federal Regulations. 9 (10) Given the proliferation of plant-based 10 products in the marketplace that are mislabeled as 11 milk despite the standard of identity defined for this 12 substance, enforcement by the Food and Drug Ad- 13 ministration against these practices should be im- 14 proved to avoid misleading consumers. 15 SEC. 3. PURPOSE. 16 No food may be introduced or delivered for introduc- 17 tion into interstate commerce using a market name for 18 a dairy product if the food does not meet the criterion 19 set forth for dairy products under paragraph (z)(2) of sec- 20 tion 403 of the Federal Food, Drug, and Cosmetic Act 21 (21 U.S.C. 343) (as added by section 4(a)). 22 VerDate Sep 11 2014 19:49 May 20, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1346.IS S1346 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 1346 IS SEC. 4. ENFORCEMENT OF DEFINITION. 1 (a) IN GENERAL.—Section 403 of the Federal Food, 2 Drug, and Cosmetic Act (21 U.S.C. 343) is amended by 3 adding at the end the following: 4 ‘‘(z)(1) If it uses a market name for a dairy product 5 described in subparagraph (3) and the food does not meet 6 the criterion for being a dairy product, as described in 7 subparagraph (2). 8 ‘‘(2) For purposes of this paragraph, a food is a dairy 9 product only if the food is, contains as a primary ingre- 10 dient, or is derived from, the lacteal secretion, practically 11 free from colostrum, obtained by the complete milking of 12 one or more hooved mammals. 13 ‘‘(3) A market name for a dairy product described 14 in this subparagraph means the dairy product terms de- 15 scribed in parts 131 and 133 of subchapter B of chapter 16 I of title 21, Code of Federal Regulations, and sections 17 135.110, 135.115, and 135.140 of title 21, Code of Fed- 18 eral Regulations (or any successor regulations), or any 19 other term for which the Secretary has promulgated a 20 standard of identity with respect to a food that is formu- 21 lated with a dairy product (as described in subparagraph 22 (2)) as the primary ingredient.’’. 23 (b) GUIDANCE.—The Secretary of Health and 24 Human Services, acting through the Commissioner of 25 Food and Drugs, shall— 26 VerDate Sep 11 2014 19:49 May 20, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1346.IS S1346 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 1346 IS (1) not later than 90 days after the date of en- 1 actment of this Act, issue draft guidance on how en- 2 forcement of the amendment made by subsection (a) 3 will be carried out; and 4 (2) not later than 180 days after the date of 5 enactment of this Act, issue final guidance on such 6 enforcement. 7 (c) REPORT TO CONGRESS.—Not later than 2 years 8 after the date of enactment of this Act, the Secretary of 9 Health and Human Services, acting through the Commis- 10 sioner of Food and Drugs, shall report to Congress on en- 11 forcement actions taken under paragraph (z) of section 12 403 of the Federal Food, Drug, and Cosmetic Act (21 13 U.S.C. 343), as amended by this Act, including warnings 14 issued pursuant to such paragraph and penalties assessed 15 under section 303 of such Act (21 U.S.C. 333) with re- 16 spect to such paragraph. If food that is misbranded under 17 section 403(z) is offered for sale in interstate commerce 18 at the time of such report, the Commissioner of Food and 19 Drugs shall include in such report an updated plan for 20 enforcement with respect to such food. 21 Æ VerDate Sep 11 2014 19:49 May 20, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\S1346.IS S1346 pamtmann on DSKBC07HB2PROD with BILLS