CHICAGO — Demand for plant-based dairy alternatives is booming, and with it, lawsuits and legislation aimed at restricting how those products are labeled. 

For dairy alternatives, most cases have focused on whether products like almond milk and soy milk meet the standards of identity for milk, which the US Food and Drug Administration currently defines as “the lacteal secretion … obtained by milking one or more healthy cows.”

It’s a narrow definition that excludes some animal-based dairy products, said Martin H. Hahn, partner and food regulatory lawyer at Hogan Lovells, during a presentation at ShIFT20, the virtual food show and expo hosted by IFT.

“We don’t see the FDA objecting to goat milk or sheep milk, but it does have some concerns with people using the term for products such as soy milk or almond milk,” Mr. Hahn said.

Scott Gottlieb, former FDA commissioner, remarked in 2018 that almond milk should not be called milk “because almonds don’t lactate.” The same argument has been used in court to argue plant-based dairy alternatives that use the term milk are misleading consumers.

Makers of plant-based milk alternatives argue most people reasonably expect a product labeled soy milk or cashew milk will come from soy or cashews.

The courts so far have agreed, Mr. Hahn said, citing a class action suit filed several years ago that claimed almond milk doesn’t meet the standards of definition for milk.

“The judges ultimately dismissed that case, saying they couldn’t figure out how any consumer reasonably could be confused,” he said.

An area where there is fair criticism that can be leveled against the plant-based industry, and where there are potential vulnerabilities if companies aren’t careful, is the nutritional differences between nut milks and cow’s milk, Mr. Hahn said.

“If you look at these products side-by-side from a nutritional comparison, you can see some meaningful differences,” Mr. Hahn said. “That’s actually a concern from a legal perspective.”

Current regulations state a product is not an imitation if it is not nutritionally inferior and bears an appropriately descriptive common or usual name. Under the imitation regulation, plant-based products should contain the same levels of protein, vitamin D, vitamin A and any other nutrient that is present in dairy milk at a level of 2% or more.

“This brings up the question of protein quality,” Mr. Hahn said. “If you look at the amino acid profile of plant-based proteins, they are not complete proteins. From a nutritional labeling perspective, whenever you’re using a plant-based protein and you make a protein claim, you must adjust that protein for the amino acid quality that’s in the product. Sometimes those adjustments can be pretty significant.”

Similar issues surround meat alternatives, with several states enacting laws that restrict the use of terms associated with traditional meat and poultry products. Actions taken at the state level have resulted in a patchwork of laws and regulations.

“There’s inconsistencies in terms of how one state may define a term versus another state,” Mr. Hahn said. “If you’re going to come out with a plant-based product, don’t call it plant-based ground beef. Call it a plant-based burger. Use a term that’s not solely identified with an established meat or poultry product.”

Labeling issues will continue evolving as plant-based takes up a bigger portion of the market, and makers of plant-based alternatives should keep an eye on the litigation landscape to identify potential vulnerabilities.

“Opportunities exist under state consumer protection laws to bring actions against the industry,” Mr. Hahn said. “The area where we do have vulnerabilities are if you’re marketing a plant-based product that has milk in its name and you’re nutritionally inferior. If you’re coming out with a plant-based product that is an alternative to meat, be smart. Find terms that allow the consumer to know what that product is going to be and distinguish it from the standardized product.”