DAIRY PRIDE Act

II 116TH CONGRESS 1ST SESSION S. 792 To require enforcement against misbranded milk alternatives. IN THE SENATE OF THE UNITED STATES MARCH 14, 2019 Ms. BALDWIN (for herself, Mr. RISCH, Mr. LEAHY, Mr. CRAPO, Ms. STABE- NOW, and Mr. KING) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pen- sions 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 03:13 Mar 27, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S792.IS S792 kjohnson on DSK79L0C42 with BILLS 2 •S 792 IS to the 2015–2020 Dietary Guidelines for Americans 1 (referred to in this section as the ‘‘Dietary Guide- 2 lines’’) published by the Department of Health and 3 Human Services and the Department of Agriculture. 4 The Dietary Guidelines state that most Americans 5 are not meeting recommended intake for the dairy 6 food group. Consumption of dairy foods provides nu- 7 merous health benefits, including lowering the risk 8 of diabetes, metabolic syndrome, cardiovascular dis- 9 ease, and obesity. 10 (2) The Dietary Guidelines state that dairy 11 foods are excellent sources of critical nutrients for 12 human health, including vitamin D, calcium, and po- 13 tassium, all of which are under-consumed by people 14 of the United States. When consumed in the 15 amounts recommended by the Food Patterns of the 16 Department of Agriculture, on average across the 17 calorie levels, dairy foods contribute about 67 per- 18 cent of calcium, 64 percent of vitamin D, and 17 19 percent of magnesium. 20 (3) About 30 percent of adolescent boys meet or 21 exceed the recommended 3-cup equivalents per day, 22 but less than 10 percent of adolescent females meet 23 or exceed this recommendation. An age-related de- 24 cline in dairy intake appears to begin in adolescence 25 VerDate Sep 11 2014 03:13 Mar 27, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S792.IS S792 kjohnson on DSK79L0C42 with BILLS 3 •S 792 IS and intakes persist at very low levels among adult 1 females across the age distribution. Less than 5 per- 2 cent of adult females consume the recommended 3- 3 cup equivalents per day. Overall, more than 80 per- 4 cent of the entire population of the United States 5 does not meet the daily dairy intake recommenda- 6 tion. 7 (4) The Dietary Guidelines state that vitamin 8 D and potassium amounts vary across plant-based 9 milk alternatives. The amount of calcium per calorie 10 is lower for most plant-based alternative milk prod- 11 ucts. To obtain the amount of calcium contained in 12 one cup of non-fat fluid milk from a plant-based 13 milk alternative, the portion size and calorie intake 14 must be greater. 15 (5) Imitation dairy products, such as plant- 16 based products derived from rice, nuts, soybeans, 17 hemp, coconut, algae, and other foods that imitate 18 milk, yogurt, and cheese, often do not provide the 19 same nutrition content as real milk, cheese, and yo- 20 gurt derived from dairy cows. 21 (6) Plant-based products labeled as milk are 22 misleading to consumers. 23 (7) The Food and Drug Administration has 24 regulations that define milk and cream as the ‘‘lac- 25 VerDate Sep 11 2014 03:13 Mar 27, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S792.IS S792 kjohnson on DSK79L0C42 with BILLS 4 •S 792 IS teal secretion, practically free from colostrum, ob- 1 tained by the complete milking of one or more 2 healthy cows’’ (section 131.110 of title 21, Code of 3 Federal Regulations). This definition further applies 4 to milk used to create other dairy products, includ- 5 ing yogurt and cheese, as specified in section 131 6 and 133 of title 21, Code of Federal Regulations. 7 (8) Given the proliferation of plant-based prod- 8 ucts in the marketplace that are mislabeled as milk 9 despite the standard of identity defined for this sub- 10 stance, enforcement by the Food and Drug Adminis- 11 tration against these practices should be improved to 12 avoid misleading consumers. 13 SEC. 3. PURPOSE. 14 No food may be introduced or delivered for introduc- 15 tion into interstate commerce using a market name for 16 a dairy product if the food does not meet the criterion 17 set forth for dairy products under paragraph (z)(2) of sec- 18 tion 403 of the Federal Food, Drug, and Cosmetic Act 19 (21 U.S.C. 343) (as added by section 4(a)). 20 SEC. 4. ENFORCEMENT OF DEFINITION. 21 (a) IN GENERAL.—Section 403 of the Federal Food, 22 Drug, and Cosmetic Act (21 U.S.C. 343) is amended by 23 adding at the end the following: 24 VerDate Sep 11 2014 03:13 Mar 27, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S792.IS S792 kjohnson on DSK79L0C42 with BILLS 5 •S 792 IS ‘‘(z)(1) If it uses a market name for a dairy product 1 described in subparagraph (3) and the food does not meet 2 the criterion for being a dairy product, as described in 3 subparagraph (2). 4 ‘‘(2) For purposes of this paragraph, a food is a dairy 5 product only if the food is, contains as a primary ingre- 6 dient, or is derived from, the lacteal secretion, practically 7 free from colostrum, obtained by the complete milking of 8 one or more hooved mammals. 9 ‘‘(3) A market name for a dairy product described 10 in this subparagraph means the dairy product terms de- 11 scribed in parts 131 and 133 of subchapter B of chapter 12 I of title 21, Code of Federal Regulations and sections 13 135.110, 135.115, and 135.140 of title 21, Code of Fed- 14 eral Regulations (or any successor regulations), or any 15 other term for which the Secretary has promulgated a 16 standard of identity with respect to a food that is formu- 17 lated with a dairy product (as described in subparagraph 18 (2)) as the primary ingredient.’’. 19 (b) GUIDANCE.—The Secretary of Health and 20 Human Services, acting through the Commissioner of 21 Food and Drugs, shall— 22 (1) not later than 90 days after the date of en- 23 actment of this Act, issue draft guidance on how en- 24 VerDate Sep 11 2014 03:13 Mar 27, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S792.IS S792 kjohnson on DSK79L0C42 with BILLS 6 •S 792 IS forcement of the amendment made by subsection (a) 1 will be carried out; and 2 (2) not later than 180 days after the date of 3 enactment of this Act, issue final guidance on such 4 enforcement. 5 (c) REPORT TO CONGRESS.—Not later than 2 years 6 after the date of enactment of this Act, the Secretary of 7 Health and Human Services, acting through the Commis- 8 sioner of Food and Drugs, shall report to Congress on en- 9 forcement actions taken under paragraph (z) of section 10 403 of the Federal Food Drug and Cosmetic Act (21 11 U.S.C. 343), as amended by this Act, including warnings 12 issued pursuant to such paragraph and penalties assessed 13 under section 303 of such Act (21 U.S.C. 333) with re- 14 spect to such paragraph. If food that is misbranded under 15 section 403(z) is offered for sale in interstate commerce 16 at the time of such report, the Commissioner of Food and 17 Drugs shall include in such report an updated plan for 18 enforcement with respect to such food. 19 Æ VerDate Sep 11 2014 03:13 Mar 27, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\S792.IS S792 kjohnson on DSK79L0C42 with BILLS