What This Bill Does
This bill requires the Food and Drug Administration to enforce rules against foods labeled as milk, yogurt, cheese, or other dairy products when those foods do not actually come from dairy animals. The bill states that plant-based products like almond or oat milk should not be allowed to use dairy product names in the marketplace.
Who It Affects
Food companies that make or sell plant-based milk alternatives and dairy product imitations. The Food and Drug Administration (the federal agency that regulates food safety and labeling). Consumers who buy milk, yogurt, cheese, and similar products.
Key Provisions
• No food can be sold across state lines using a dairy product name unless it meets the definition of a dairy product (Sec. 3)
• A food only counts as a dairy product if it is made from, contains as a primary ingredient, or comes from the milk of hooved mammals (Sec. 4(a))
• The Food and Drug Administration must issue draft guidance within 90 days on how to enforce this rule, and final guidance within 180 days (Sec. 4(b)(1))
• The Food and Drug Administration must report to Congress within 2 years about enforcement actions taken, including any warnings or penalties issued (Sec. 4(c))
• Any previous FDA guidance that contradicts this new rule stops working immediately (Sec. 4(b)(2))
What Changes
If this becomes law, plant-based products like oat milk, almond milk, rice milk, and coconut milk would no longer be allowed to use the word "milk" on their labels when sold across state lines. The same restriction would apply to plant-based yogurt and cheese products using dairy product names. The FDA would have to begin enforcing this rule.
Important Definitions
The bill defines a dairy product as food that is made from, contains as a primary ingredient, or comes from "the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more hooved mammals" (meaning liquid produced by dairy animals like cows when milked) (Sec. 4(a)).
Effective Date
Not specified in bill text
II
118TH CONGRESS
1ST SESSION
S. 549
To require enforcement against misbranded milk alternatives.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 28, 2023
Ms. BALDWIN (for herself, Mr. RISCH, Ms. COLLINS, Mr. WELCH, Mr. KING,
Ms. STABENOW, Mr. CRAPO, Mr. MARSHALL, Ms. SMITH, Mr. LUJA´N,
and Mr. ROUNDS) introduced the following bill; which was read twice and
referred to the Committee on Health, Education, 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
22:28 Mar 07, 2023
Jkt 039200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\S549.IS
S549
kjohnson on DSK79L0C42PROD with BILLS
2
•S 549 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
22:28 Mar 07, 2023
Jkt 039200
PO 00000
Frm 00002
Fmt 6652
Sfmt 6201
E:\BILLS\S549.IS
S549
kjohnson on DSK79L0C42PROD with BILLS
3
•S 549 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
22:28 Mar 07, 2023
Jkt 039200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\S549.IS
S549
kjohnson on DSK79L0C42PROD with BILLS
4
•S 549 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
22:28 Mar 07, 2023
Jkt 039200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6201
E:\BILLS\S549.IS
S549
kjohnson on DSK79L0C42PROD with BILLS
5
•S 549 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
22:28 Mar 07, 2023
Jkt 039200
PO 00000
Frm 00005
Fmt 6652
Sfmt 6201
E:\BILLS\S549.IS
S549
kjohnson on DSK79L0C42PROD with BILLS
6
•S 549 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.—
24
VerDate Sep 11 2014
22:28 Mar 07, 2023
Jkt 039200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\S549.IS
S549
kjohnson on DSK79L0C42PROD with BILLS
7
•S 549 IS
(1) NEW GUIDANCE.—The Secretary of Health
1
and Human Services, acting through the Commis-
2
sioner of Food and Drugs, shall—
3
(A) not later than 90 days after the date
4
of enactment of this Act, issue draft guidance
5
on how enforcement of the amendment made by
6
subsection (a) will be carried out; and
7
(B) not later than 180 days after the date
8
of enactment of this Act, issue final guidance
9
on such enforcement.
10
(2) EFFECT
ON
CERTAIN
PREVIOUS
GUID-
11
ANCE.—Effective on the date of enactment of this
12
Act, any guidance issued by the Secretary of Health
13
and Human Services, acting through the Commis-
14
sioner of Food and Drugs, that is not consistent
15
with paragraph (z) of section 403 of the Federal
16
Food, Drug, and Cosmetic Act (21 U.S.C. 343), as
17
added by subsection (a), shall have no force or ef-
18
fect.
19
(c) REPORT TO CONGRESS.—Not later than 2 years
20
after the date of enactment of this Act, the Secretary of
21
Health and Human Services, acting through the Commis-
22
sioner of Food and Drugs, shall report to Congress on en-
23
forcement actions taken under paragraph (z) of section
24
403 of the Federal Food, Drug, and Cosmetic Act (21
25
VerDate Sep 11 2014
22:28 Mar 07, 2023
Jkt 039200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\S549.IS
S549
kjohnson on DSK79L0C42PROD with BILLS
8
•S 549 IS
U.S.C. 343), as amended by this Act, including warnings
1
issued pursuant to such paragraph and penalties assessed
2
under section 303 of such Act (21 U.S.C. 333) with re-
3
spect to such paragraph. If food that is misbranded under
4
section 403(z) is offered for sale in interstate commerce
5
at the time of such report, the Commissioner of Food and
6
Drugs shall include in such report an updated plan for
7
enforcement with respect to such food.
8
Æ
VerDate Sep 11 2014
22:28 Mar 07, 2023
Jkt 039200
PO 00000
Frm 00008
Fmt 6652
Sfmt 6301
E:\BILLS\S549.IS
S549
kjohnson on DSK79L0C42PROD with BILLS