Milk is Milk Blog by Alex Avery

It’s good to know that our friends over at New Jersey’s Consumer and Environmental Health Services haven’t forgotten about us. You might recall that, a couple months back, we received a reply from the state of New Jersey for a complaint we filed about the black marketing tactics of certain organic dairy brands. The letter acknowledged, encouragingly, “that there is an emerging trend of labeling violations,” and assured us that NJ would conduct a “label review” and “take action in accordance with the law if it is determined that any of them are misbranded.” New Jersey, lest we forget, diligently and responsibly handled a previous request and required that Parmalat milk fix their misleading labels in 2002.

Well, it’s been a few months, but we finally got word back. And New Jersey’s response is… (drumroll)… ‘we’re working on it.’ (not a direct quote, of course). To be fair, the Project Coordinator handling our complaint wrote, “Please accept our apologies for the time lag involved in investigating your complaint.” Apologies accepted. We know that it takes a while to break through the bureaucratic shuffle. Heck, we originally filed this complaint in 2001!! The excuse? The Project Coordinator noted that he has been “diligently pursuing the FDA Milk Safety Branch for interpretation” regarding our claims but that “the FDA has not responded to [their] requests.”

In case any of my readers are confused, I’d like to explain that what we have sent the state of New Jersey is a consumer advocacy complaint, and not a hot potato. While I can appreciate that a state agency would not want to overstep its bounds (Parmalat, Farmland brand milk and others - the subjects of our complaint - are shipped into interstate commerce), this issue is clearly within New Jersey’s jurisdiction! As the Deputy Commissioner of the NJ Department of Health clearly pointed out, these brands are “produced at licensed milk plants located in New Jersey.”

Even if New Jersey decides it can’t handle this decision on its own, and instead needs FDA guidance, it does not take months and months of “diligently pursuing the FDA… for interpretation” to get it. I ran a couple of Google searches online and found FDA Docket No. 94D-0025 at the FDA Web site with the full text at University of Florida’s Web site.

This guidance document states in plain terms that the “FDA is concerned that the term ‘rbST-free’ may imply a compositional difference between milk from treated and untreated cows rather than a difference in the way the milk is produced.” In the case of Farmland, however, the label is not only misleading in this regard, it is also factually wrong. The label states, “No hormones added” yet ADDS Vitamin D3 (a HORMONE) to the milk. The label also reads, “no antibiotics” as if some milk actually contained antibiotics (no milk does)!!!

So here’s the letter I’m going to send to our friend Felicia Satchell over at the Food and Drug Administration. We will keep you apprised of her reply. I remain confident that the FDA will respond to the state of New Jersey, and repeat what it has said time and time again: that milk is milk.

Dear Felicia Satchell,

My organization, which has filed a complaint with the state of New Jersey, recently received a reply letter from the state’s Consumer and Environmental Health Service. Our respondent (see attached) expressed his distress at the fact that your agency has been unresponsive to his request for guidance, and noted that he had been “diligently pursuing” the Milk Safety Branch of the United States Food and Drug Administration for months. We appreciate his efforts and share his frustration.

New Jersey’s Consumer and Environmental Health Service has made “requests to provide guidance” from the FDA and his requests have gone unanswered. Now, we know that the FDA has been sufficiently clear on the topic of labeling (and mislabeling) of dairy products with respect to bovine somatotropin (rbST) in the past. In fact, a “guidance” document on this topic currently exists as FDA Docket No. 94D-0025. However, the FDA has been completely remiss in their enforcement of these important consumer and dairy producer protections; I am including a relevant excerpt below, for your reference. This was authored by the FDA’s Deputy Commissioner for Policy, and I’m sure you’re well acquainted with the full version.

Appropriate Labeling Statements At the federal level, statements about rbST in the labeling of food shipped in interstate commerce would be reviewed under sections 403(a) and 201(n) of the act. Under section 403(a) of the act, a food is misbranded if statements on its label or in its labeling are false or misleading in any particular. Under section 201 (n), both the presence and the absence of information are relevant to whether labeling is misleading. That is, labeling may be misleading if it fails to disclose facts that are material in light of representations made about a product or facts that are material with respect to the consequences that may result from use of the product. Thus, certain labeling statements about the use of rbST may be misleading unless they are accompanied by additional information. This guidance is based on the use of the false or misleading standard in the federal law, which is incorporated in many states’ food and drug laws. States may also have additional authorities that are relevant in regulating such claims. Because of the presence of natural bST in milk, no milk is “bST-free,” and a bST-free labeling statement would be false. Also, FDA is concerned that the term “rbST-free” may imply a compositional difference between milk from treated and untreated cows rather than a difference in the way the milk is produced. Instead, the concept would better be formulated as “from cows not treated with rbST” or in other similar ways. However, even such a statement, which asserts that rbST has not been used in the production of the subject milk, has the potential to be misunderstood by consumers. Without proper context, such statements could be misleading. Such unqualified statements may imply that milk from untreated cows is safer or of higher quality than milk from treated cows. Such an implication would be false and misleading… States should evaluate any labeling statement about rbST in the context of the complete label and all labeling for the products, as well as of any advertising for the product. Available data on consumers’ perceptions of the label statements could also be used to determine whether a statement is misleading.

An important point, which for our purposes, bears emphasizing, is that Deputy Commissioner Taylor left the evaluation of the dairy labels to the “states” (given the guidance and information provided here by the FDA). We hope you will reaffirm this position to the state of New Jersey (they have demonstrated ample patience awaiting your response), and note that it is both in the power and in the interests of that agency to prohibit these misleading labeling practices.

We continue to hope that, in the absence of new or additional information from the FDA, the state of New Jersey will take action in compliance with both its authority to do so and its responsibility to its citizens and consumers. We insist, however, that the FDA provide the guidance that the state of New Jersey is seeking and reiterate its opposition to misleading nature of absence claims in dairy product labeling. Thank you for your time and for your attention to this important matter.

Sincerely,

Alex Avery
Director of Research and Education
Center for Global Food Issues