Partner and Chair of Life Sciences, Katherine Rubino, spoke with FOX Business to provide insight on the FDA’s recent draft proposal stating that plant-based milk manufacturers should be able to call their beverages “milk.”

Should plant-based milk be called “milk” even if it lacks dairy?

The FDA’s newly drafted proposal that suggests plant-based and non-dairy milk, such as “almond milk” and “soy milk, can potentially be called “milk”, even though it doesn’t come from an animal. This used to be the agency’s requirement for use of the word, though it has largely been unenforced.

Hear from Partner and Chair of Life Sciences, Katherine Rubino, about whether this proposal is fair to consumers and dairy farmers who have been protective over the word “milk.” Some argue that consumers know the difference between plant-based and animal-produced milk while others would argue that lenient labeling could cause confusion (for ex: false or misleading advertising).

Katherine Ann Rubino told FOX Business that plant-based milk producers being allowed to call non-dairy milk a form of milk could raise intellectual property concerns regarding trademark laws.

The legal standard here is whether consumers would be confused or deceived in the marketplace by purchasing plant-based products labeled as ‘milk’ that do not in fact contain dairy [and whether that would] impact their purchasing decision.

Katherine Rubino

Rubino explained that trademark law is focused on upholding consumer rights and shielding them from deceptive marketing strategies with food naming, but litigation on whether the term “milk” can be used on plant-based milk products has yet to be fully figured out.

“A court would most likely find that terms such as ‘almond milk’ or ‘soy milk’ are generic terms, meaning that because of its popularity in the marketplace, it has become synonymous with a general class of products and as such consumers are not likely to be confused,” Rubino continued. “Plant-based milk has been around for many years now and has seemingly gained notoriety in recent years.”

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