Just What Is “Milk”?

South Mountain Creamery in Maryland is in something of a bizarre situation. The farm has it’s own bottling plant and sells milk directly to consumers, and it has the FDA going after it because it’s 100% real pasteurized skim milk is, well, 100% real skim milk and nothing else.

That’s right, the FDA claims the creamery cannot label it’s skim milk as “skim milk”. It is trying to order the creamery to label it “imitation milk product” or “imitation milk” when, well, when it absolutely is not imitation anything. The FDA claims it has to be labeled “imitation” because the product does not contain artificially added vitamins.

Now, a bit of background here. The milk you buy in the grocery store is not actually pure milk. Pretty much none of it is. It has vitamins A and D added to it. Basically the bottling plant throws a ground up vitamin pill in it. Why? Because once up on a time about 90 or so years ago, we had problems with vitamin deficiencies so the government began to mandate adding extra vitamins to milk. But the fact of the matter is that this hasn’t been necessary in, well, half a century, really. And there is actually a risk of getting too much A and D. Most European countries actually ban adding adding them to milk because of the risk of overdose. Too much D can cause heart arrhythmia and other problems and too much A can be seriously toxic as well.

And in any case, the amount of A and D being added may not even be what it says on the label to begin with as the New York Times discovered back in 1992 when  independent testing of milk samples found that the actual amounts of vitamins in the milk being sold varied wildly, and in at least one case back in 1992 the level of vitamin D was so high it was dangerous causing medical problems for at least eight people.

Now I’m not going to get into the debate about whether or not D and A should or should not be added to milk. I just want to talk about this whole labeling nonsense because, well, according to the FDA’s own regulations, the agency’s actions in this case seem to be just wrong. Here is how FDA defines “milk”:

[Code of Federal Regulations]
[Title 21, Volume 2]
[Revised as of April 1, 2017]
[CITE: 21CFR131.110]




Subpart B–Requirements for Specific Standardized Milk and Cream

Sec. 131.110 Milk.
(a) Description. Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows. Milk that is in final package form for beverage use shall have been pasteurized or ultrapasteurized, and shall contain not less than 8 1/4 percent milk solids not fat and not less than 3 1/4 percent milkfat. Milk may have been adjusted by separating part of the milkfat therefrom, or by adding thereto cream, concentrated milk, dry whole milk, skim milk, concentrated skim milk, or nonfat dry milk. Milk may be homogenized.

(b) Vitamin addition (Optional). (1) If added, vitamin A shall be present in such quantity that each quart of the food contains not less than 2000 International Units thereof within limits of good manufacturing practice.

(2) If added, vitamin D shall be present in such quantity that each quart of the food contains 400 International Units thereof within limits of good manufacturing practice.

(c) Optional ingredients. The following safe and suitable ingredients may be used:

(1) Carriers for vitamins A and D.

(2) Characterizing flavoring ingredients (with or without coloring, nutritive sweetener, emulsifiers, and stabilizers) as follows:

(i) Fruit and fruit juice (including concentrated fruit and fruit juice).

(ii) Natural and artificial food flavorings.

(d) Methods of analysis. Referenced methods are from “Official Methods of Analysis of the Association of Official Analytical Chemists,” 13th Ed. (1980), which is incorporated by reference. Copies may be obtained from the AOAC INTERNATIONAL, 481 North Frederick Ave., suite 500, Gaithersburg, MD 20877, or may be examined at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

(1) Milkfat content–“Fat, Roese-Gottlieb Method–Official Final Action,” section 16.059.

(2) Milk solids not fat content–Calculated by subtracting the milk fat content from the total solids content as determined by the method “Total Solids, Method I–Official Final Action,” section 16.032.

(3) Vitamin D content–“Vitamin D–Official Final Action,” sections 43.195-43.208.

(e) Nomenclature. The name of the food is “milk”. The name of the food shall be accompanied on the label by a declaration indicating the presence of any characterizing flavoring, as specified in 101.22 of this chapter.

(1) The following terms shall accompany the name of the food wherever it appears on the principal display panel or panels of the label in letters not less than one-half the height of the letters used in such name:

(i) If vitamins are added, the phrase “vitamin A” or “vitamin A added”, or “vitamin D” or “vitamin D added”, or “vitamin A and D” or “vitamins A and D added”, as is appropriate. The word “vitamin” may be abbreviated “vit.”.

(ii) The word “ultra-pasteurized” if the food has been ultra-pasteurized.

(2) The following terms may appear on the label:

(i) The word “pasteurized” if the food has been pasteurized.

(ii) The word “homogenized” if the food has been homogenized.

(f) Label declaration. Each of the ingredients used in the food shall be declared on the label as required by the applicable sections of parts 101 and 130 of this chapter.

[42 FR 14360, Mar. 15, 1977, as amended at 47 FR 11822, Mar. 19, 1982; 49 FR 10090, Mar. 19, 1984; 54 FR 24892, June 12, 1989; 58 FR 2890, Jan. 6, 1993]

If you can wade through the legalese up there, you will note that “milk” is specifically defined, and it says things like “if” vitamin A is added, and “if” vitamin D is added, they must be at certain levels. But it doesn’t say they must be added for the product to be called “milk”. Nor does it say anything about a requirement to label milk as “imitation” if they are not added. So if this is accurate, FDA’s claim that this creamery’s skim milk must be labeled “imitation” is not in keeping with FDA’s own regulations.

Now there may be some regulation, somewhere, that requires milk to have added A and D in order to be called “milk” but I haven’t managed to find any regulations that state explicitly that in order to label something “milk” it must have A and D added to it.

This isn’t the first time this issue has come up. About a year ago there was a case in Florida where the state claimed the Ocheesee Creamery couldn’t label it’s skim milk as “skim milk” and had to call it “imitation skim milk”, despite the fact it was 100% skim milk. The state lost and lost badly, ending up with the 11th US Circuit Court ruling against the state and Florida having to pay almost half a million dollars.

The other thing I find curious is that despite the fact that the FDA has a rather strict definition of the term “milk”, i.e. “Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”, it doesn’t seem to have a problem with various nut and legume juices and extracts labeling themselves as “milk”, such as soy milk and pea milk and almond milk.

But Is It Milk?

I always thought that milk was a substance that was excreted by special glands of mammals which was used to feed their young. Or, in the case of some types of cattle, to make yummy, yummy cheese (1).

But apparently what I learned in school is wrong, because if you look through the dairy section of the grocery store these days you’ll find out that you can apparently milk a lot of different things. You’ll find almond milk, soybean milk, rice milk, coconut milk, milk stout… One quickly gets the impression that just about anything can be milked. And judging from the prices on this stuff, one quickly discovers that what is really getting milked is the consumer.

So, the question is, is this stuff, these various liquids derived in one way or another from non-mammalian sources, really “milk”?

Of course it isn’t. And some people are getting a wee bit irritated by all of these people calling a product that is basically nothing more than water, thickening agents, flavoring agents and a ground up vitamin pill “milk”. Like these people here. This is a communication from an assortment of Congresspersons to the FDA politely pointing out that calling what is basically some type of nut flavored water, ‘milk’ is grossly misleading, inaccurate and even deceptive.

What’s especially irritating about these various “milks” is that while they are heavily advertised as being nutritional powerhouses, that they are healthier for you than real milk and are more ‘natural’ somehow, they pretty much aren’t.

Let’s look at almond milk. Now there is no doubt that almonds are good for you. Lots and lots of nutritional value and they’re pretty damned tasty. But almond milk? Ah, well, about that…

There are very few almonds actually in commercial almond milk. If you start scrounging around Google you’ll quickly find out that a lot of these almond milks are mostly water, various additives and flavoring agents, and very few actual almonds. Many of them contain only 2% actual almonds. Two cups of almond milk will have, if you’re lucky, maybe 9 actual almonds in it. If you don’t believe me, go look it up yourself. I’ll wait… Ah, back, are we? Good. Let’s get on with this, then.

A year or so ago, a couple of makers of almond milk were being sued in New York because their “almond milk” had only 2% actual almonds in it. It’s basically just almond flavored water with lots and lots of additives. Their argument was that calling something “almond” anything when the product has only 2% almonds in it is wildly misleading.

Then there is the problem of the other ingredients in the stuff. If you read the ingredients labels on most almond milks and similar products, it reads like a high school chemistry experiment. Various gums and thickeners, flavoring agents, salt, sugar and vitamins are added to the stuff. Basically it’s little more than water with thickening agents, flavorings, colorings and a ground up vitamin pill in it, with a bit of almond flavoring.

Now I have nothing against chemicals(2). Everything is chemicals, really. Chemicals are nothing but the basic components of, well, everything. But when you’re buying something labeled “almond milk” wouldn’t you want, well, almond milk, and not something that’s 2% almonds, 8% thickening agents, salt, sugar, flavoring agents and added vitamins, and the rest water?

They have to add all that stuff because when you soak a bunch of nuts in a vat of water, very, very little of the nuts’ actual nutritional content ends up in the water. Neither does flavor. Also the resulting ‘milk’ looks a bit like thin, cloudy water with some sludge on the bottom. So vitamins have to be added to make the stuff seem healthy. Thickeners have to be added to make it look more like real milk and less like, well, water. Flavoring has to be added to make it taste like something.

So, is it legally “milk”, this stuff? Under FDA rules and regulations that I’ve been able to find, the answer is no. Under FDA rules and regulations, milk is defined as “the normal lacteal secretion, practically free of colostrum, obtained from the milking of hooved mammals.” If you want to wade through all of the legalspeak and other nonsense, you can do so here at the FDA’s regulatory information site.

But that’s simplifying things enormously because definitions of terms is a strange and arcane branch of law and when it comes right down to it no one seems to know for sure.

So why don’t they just call it, oh, nut juice, then?

Well, they can’t do that because it isn’t. In order to be labeled ‘juice’ it has to be mostly the juice of the item on the label, and most of these “milks” contain less than 5% (in some cases 2%) of the nut listed on the label.

So is this stuff “milk”? No. Not by any stretch of the imagination. It resembles actual milk only because it is highly processed and has a variety of thickening agents, emulsifiers, colorings and other additives mixed it. It is nutritionally beneficial only in that it has vitamins and minerals from external sources added to it.



  1. Or the infamous Peruvian Beaver Cheese. And the less said about that, the better.
  2. Mmm — yummy yummy chemicals…