Consumers Don’t Confuse Almond Milk and Cow Milk–Painter v. Blue Diamond

A putative class claimed Blue Diamond “mislabeled its almond beverages as ‘almond milk’ when they should be labeled ‘imitation milk’ because they substitute for and resemble dairy milk but are nutritionally inferior to it.” The lawsuit fails. The court responded that the FDA has exclusive control over food labeling. The court also rejected the parallel false advertising claims. The court says:

Painter’s complaint does not plausibly allege that a reasonable consumer would be deceived into believing that Blue Diamond’s almond milk products are nutritionally equivalent to dairy milk based on their package labels and advertising….

Almond milk is not an “imitation” of dairy milk within the meaning of 21 U.S.C. § 343(c) and 21 C.F.R. § 101.3(e). Notwithstanding any resemblance to dairy milk, almond milk is not a “substitute” for dairy milk as contemplated by section 101.3(e)(1) because almond milk does not involve literally substituting inferior ingredients for those in dairy milk….

In addition, a reasonable jury could not conclude that almond milk is “nutritionally inferior” to dairy milk within the meaning of 21 C.F.R. § 101.3(e)(4), as two distinct food products necessarily have different nutritional profiles. As the district court concluded, it is not plausible that a reasonable consumer would “assume that two distinct products have the same nutritional content.”

Though this involves some legal arcanity, the results are pretty intuitive for anyone who regularly consumes almond milk.

This ruling squarely addresses the subject of a pending FDA notice-and-comment, which threatens to categorically ban the use of “milk,” “cheese,” and “yogurt” for vegan items. See “Use of the Names of Dairy Foods in the Labeling of Plant-Based Products” (FDA-2018-N-3522). Like so many other initiatives of our current administration, this rule-making is not intended or designed to benefit consumers at all. Instead, it’s transparently designed to help dairy producers avoid further revenue declines by creating consumer FUD about plant-based alternatives. In response to the FDA’s notice-and-comment, Kim Boyle and I submitted some brief comments in favor of allowing plant-based alternatives to use the term “milk.”

While the Ninth Circuit’s ruling is hardly definitive, it’s a good sign that current law lets plant-based milks use the term without being subject to frivolous class-action lawsuits that do nothing to improve consumer welfare. I hope the FDA reaches the same conclusion.

Case citation: Painter v. Blue Diamond Growers, No. 17-55901 (9th Cir. Dec. 20, 2018)