The Future of Milk Alternatives: Regulating Precision Fermented Plant-Based Beverages in Canada

Any trip that Canadians take to the grocery store reveals that plant-based alternatives to dairy milk have increased in popularity over recent years; what started with soy milk quickly grew into offerings as diverse as chickpea milk or oat milk. And while the public has swiftly adapted to plant-based products, the legal world continues to experience growing pains with the transition; complex, regulatory requirements for dairy labelling, as well as standards of identity, create challenges for anybody seeking to market milk alternatives.

In the United States, the Food and Drug Administration led a public comment period in 2019 to determine if plant-based products should be allowed to utilize words like “milk” and “cheese” on their labels (here); while the majority of commentators found in favour of allowing dairy terminology on plant-based products, a percentage of lobbyists and Congress members, including committees, expressed concern. In January of 2022, the Food and Drug Administration commenced work on a draft guidance for labelling plant-based alternatives to milk and animal-derived foods; however, as of September 2022, the guidance remains under development.

In Canada, manufacturers of dairy alternatives experienced similar struggles to those in the United States (see “Vegan café defies CFIA order to stop using words burger, cheese”, published in 2019), but the plant-based market has made great strides in recent years. On the one hand, changes to the Food and Drug Regulations (“FDR”) now distinguish between simulated meat and poultry and other products which do not substitute for meat or poultry products; likewise, government agencies, such as Agriculture and Agri-Food Canada, have produced policy reports on the sales figures of milk alternatives to track the growing popularity of plant-based foods. Between January 2018 and February 2021, 161 milk alternative beverages were launched in Canada; 264 were launched in the United States during that same period. Companies, such as Plant Veda, have received widespread news coverage of their assessment and licensure process, allowing them to distribute their milk alternatives across the country.

However, as the regulatory bodies make strides towards identifying and labelling plant-based alternatives in food, manufacturers of animal-free dairy milk have entered the market to stir the pot. In this new animal-free dairy universe, bright and catchy advertisements on TikTok and related social media lead the charge in advancing cellular agriculture to consumers who do not consume animal by-products or are lactose-intolerant, but may still enjoy the taste and nutritional benefits of dairy milk. And while these advertisements primarily exist for the American consumer, Canadians will likely see them, too. But what does this mean for the Canadian regulatory market?

In line with the idea of lab-grown meat, cellular agriculture has opened doors to create dairy-like products without animal by-products, through scientific innovation. The innovators are marketing the process as “real dairy that’s 100% animal-free”. To process the “dairy”, the innovators use cellular agriculture technology to add DNA sequences to food grade genetically engineered microflora, which then produces proteins and other ingredients naturally found in plants and animals. Whey protein, which is the prime protein produced, is transformed into a protein powder via fermentation and other similar processes, and then further supplemented with vitamins prior to sale. The result is a non-animal, protein powder that may be further blended with liquids to produce, what manufacturers describe as, animal-free dairy milk; the product claims to taste like dairy milk, too.

Does synthesizing some attributes traditionally found in milk, and making it taste similar, truly make the product dairy, though? In Canada, per the regulatory framework, it does not.

Dairy products in Canada are subject to the provisions of the Safe Food for Canadians Act (“SFCA”), Safe Food for Canadians Regulations (“SFCR”), the Food and Drugs Act (“FDA”), and the Food and Drug Regulations (“FDR”). Under this framework, Canada has laws for milk products, including dairy and milk standards and standards of identity, and guidance for advertising milk products.

In Canada, foods identified as “milk” must come from the mammary gland of a cow; this is a standard identified in the FDR. Dairy is defined in the SFCR as “milk or a food that is derived from milk, alone or combined with another food, and that contains no oil and no fat other than that of milk”. Based on these definitions it is impossible for a product derived from microflora, rather than a cow, to be dairy in Canada. Milk, on the other hand, is open for interpretation, as the CFIA allows a common name to be modified to show how a food deviates from its standard. This is the case for most plant-based, milk alternatives. Plant-based milk alternatives modify “milk” with the plant used to produce the alternative; coconut milk, for example, is an acceptable common name because it shows how the product deviates from the standard – a milk derived from coconuts rather than cows.

Canadian food laws also mandate that no person label, package, sell or advertise food that is false, misleading or deceptive or that creates an erroneous impression regarding its character, value, or composition. In this regard, while “animal-free dairy milk” modifies the common names of “dairy” and “milk” to show a deviation, the negative claim of “animal-free” does not lend itself to the correct composition of the product, and could even be seen as confusing or misleading. The product may be animal-free, but what is it made of? The product may be a “milk”, but can it be animal-free dairy?

And then there is the issue of supplementing a milk alternative with vitamins; under Canada’s new, regulatory framework for supplemented foods, an “animal-free dairy milk” would be considered a supplemented food and thus beholden to additional labelling requirements, such as a Supplemented Food Facts table (“SFFt”), a food caution identifier, and a caution box. While not overly cumbersome, these requirements present another regulatory hurdle for companies attempting to market milk alternatives in Canada.

Thus, while Canadian regulators may have their eyes on cellular agriculture to monitor the future of food, our food laws – as they currently exist – present many obstacles to achieving this sort of scientific advancement. The rise in popularity of plant-based alternatives to animal foods will continue to encourage changes to food laws; likewise, as cellular agriculture grows in interest, Canadian regulators must confront its existence to determine how best to accommodate it. Innovators always face the greatest challenges, but change arises only if somebody challenges the status quo.

If you require assistance with your labelling, packaging, or marketing, or would like help with submitting a novel foods application to Health Canada, feel free to reach out to us at info@gsjameson.com