Aspartame in Flavored Milk—Do Consumers Have a Right to Know?

The Food and Drug Administration (FDA) is accepting comments on the question whether to allow the dairy industry to add “non-nutritive sweeteners” to flavored milk without mentioning it on the label. The International Dairy Foods Association (IDFA) and the National Milk Producers Federation (NMPF) filed a citizen petition requesting a change to the regulations that define the products that can be sold as milk. They claim that using low-calorie sweeteners in flavored milk will help fight childhood obesity because chocolate (and other flavored) milk sweetened with aspartame would have fewer calories than those with nutritive sweeteners.

In its Proposed rule and request for comments, the FDA notes that the industry is free to use aspartame in flavored milk under current regulations if the label identifies the milk as “reduced calorie.” But the industry doesn’t want to do that because, they say, children don’t find food identified as low-calorie appealing. They say that 70 percent of the milk consumed in schools is flavored. But low-fat chocolate milk contains 160 calories, while low-fat regular milk has only 100. If schools remove the chocolate milk, children will drink less milk and will lose its nutritional benefits. The petition points to a New York study where flavored milk was limited in certain schools, and milk consumption dropped 10 to 15 percent.

The industry argues that  its proposal would “promote honesty and fair dealing in the marketplace” by preventing consumer confusion. After all, consumers don’t think of milk—even flavored milk— as a product that contains sugar. So, they reason, if the product has fewer calories because it’s sweetened with aspartame or other artificial sweeteners, the name of the product on the label should not disclose that information to the consumer. That way, consumers won’t be confused about the nutritional value of reduced calorie chocolate milk compared to conventional chocolate milk.

There are some consumers who prefer not to use aspartame. Perhaps they get headaches, or find that artificially sweetened drinks leave them thirsty. Some are uncomfortable with the knowledge that aspartame breaks down into phenylalanine, methanol, and diketopiperazine (DKP). Phenylalanine is highly toxic to individuals with phenylketonuria (PKU), who cannot process it. Methanol breaks down further, into formaldehyde.  Some consumers simply don’t want to eat any food their great-grandmothers wouldn’t recognize as food. And even consumers who don’t object to artificial sweeteners may want to know what they’re consuming.

The government initially approved G.D. Searle’s application to market aspartame in 1974, but the FDA approval process was questioned because of alleged irregularities. Approval was withdrawn in 1980 and restored in 1981. A 1987 report of the Government Accounting Office (now the Government Accountability Office) (GAO) details the history of the FDA’s approval of aspartame up to that point.The GAO noted that more than one FDA staff member who worked on the approval moved to a position with G.D. Searle or a law firm or public relations agency that represented it. The GAO also found that 28 of the 69 scientists who reviewed aspartame thought more research was needed. A 2006 story in the New York Times also discussed the scientific dispute over the safety of aspartame.  Today, the prevailing scientific opinion appears to be that aspartame is safe.

The way the FDA processed the petition also is noteworthy. The petition was filed in October 2009, but the public wasn’t notified then. The proposed rule requesting comments was published in the Federal Register in February 2013. In the intervening three years, the petitioners met with the FDA at least once, in October 2011, to discuss the merits of their petition, before the public was aware of it.

This isn’t the first time that industry has opposed labeling to that would facilitate consumers’ choices. That’s why there is no federal requirement to label milk from cows that were treated with recombinant bovine growth hormone (rBGH). In fact, the FDA’s interim guidance says that producers who label their products “not produced using rBGH” should add a qualifying statement that the FDA has found no significant difference between milk produced without rBGH and milk produced with it. The rationale for requiring the qualifier is that standing alone, the claim “from cows not treated with rBGH” is misleading because it implies that the competitors’ milk is of inferior quality.

A citizen petition to require producers to label food grown from genetically modified organisms (GMOs) has been pending since October 2011. When she testified before a subcommittee of the Senate Appropriations Committee on April 18, 2013, Dr. Margaret Hamburg, FDA Commissioner, was asked when the agency would consider the petition. Hamburg wouldn’t give a firm date, but said that she supported voluntary disclosure of genetically modified (GM) ingredients.  Asked about the safety of GM food, she said that the agency had no reason to believe it posed a serious health risk. The FDA does not proactively seek out this information, and any risk of harm to the environment is outside the agency’s jurisdiction.