Rather than dwelling exclusively on alleged violations of the standard of identity for milk (a debate that’s recently been reignited via The Dairy Pride Act), plaintiffs in lawsuits* filed by Lee Cirsch at Capstone Law APC focus on the nutritional differences between Almond Breeze/Silk almondmilk and 2% dairy milk, arguing that the former lack the vital nutrients inherent in dairy milk, but are marketed as if they are more nutritious.
‘Defendant’s entire marketing strategy portrays its almond beverages as nutritionally superior to dairy milk…’
According to the proposed class action lawsuit against Blue Diamond Growers,* filed in the Superior Court in Los Angeles county, Almond Breeze is misbranded because Blue Diamond has “deceptively informed and led its customers to believe that they were purchasing, for a premium price, a dairy milk alternative that is nutritionally equivalent, and even superior, to dairy milk.”
Plaintiff Cynthia Cardarelli Painter claims: “By calling its almond beverages ‘milk,’ a term historically used to define cow’s milk, defendant has capitalized on reasonable consumers’ understanding of the well-known health benefits and essential nutrients that dairy milk provides without actually providing those health benefits and essential nutrients.”
While Almond Breeze Original does contain added calcium carbonate potassium citrate and vitamins A, D and E, argues Cardarelli Painter; 2% fat dairy milk contains more protein, magnesium, phosphorus, potassium, riboflavin, pantothenic acid, vitamin B6, zinc, and folate.
“Defendant’s entire marketing strategy portrays its almond beverages as nutritionally superior to dairy milk…”
"I absolutely expect this [to see more similar cases filed]. I am currently defending just such a case that has been threatened by a class action plaintiff’s lawyer."
Allan Zackler, partner, Wendel, Rosen, Black & Dean LLP
‘Imitation’ milk?
The plaintiff, who accuses Blue Diamond Growers of violating California’s false advertising and unfair competition laws, along with federal regulations mirrored by California’s Sherman Law, also argues that Almond Breeze should be labeled as ‘imitation milk,’ citing section 21CFR101.3 of the Federal Food, Drug, and Cosmetic Act:
“A food shall be deemed to be misbranded if it is an imitation of another food unless its label bears, in type of uniform size and prominence, the word ‘imitation’ and, immediately thereafter, the name of the food imitated… A food shall be deemed to be an imitation and thus subject to the requirements of section 403(c) of the act if it is a substitute for and resembles another food but is nutritionally inferior to that food.”
"The ultimate success of this particular strategy may depend upon actual consumer sentiment, which may be tested by consumer surveys. But demonstrating consumer understanding and perception of the nutritional attributes of any food or beverage is challenging, particularly as even health scientists who study such matters often disagree as the science evolves.”
Adam Fox, managing partner in the Los Angeles office of Squire Patton Boggs
In a lawsuit against WhiteWave filed by the same law firm, plaintiff Melanie Kelley notes that, “Defendant even provides a ‘compare to dairy’ link on each Silk almond beverages webpage that attempts to highlight the health advantages of its products as compared to fat-free dairy milk, yet fails to highlight nearly all of the essential vitamins provided in fat-free dairy milk that are significantly reduced or non-existent in the Silk almond beverages.”
Legal analysis: ‘I think the plaintiff is going to run into some problems at the certification stage’
So what do legal experts make of the case? A fertile new line of attack for plaintiff’s attorneys, or a stretch too far?
Ryan Kaiser, chair of the class action and business litigation team at law firm Amin Talati Upadhye, told FoodNavigator-USA that the new line of attack could prove more effective than simply going after the name (almondmilk), but that the plaintiffs could still face an uphill battle in their bid to get a class certified.
He added: “In terms of strategy, if they have the facts to support their allegations, I think plaintiff’s claims may have teeth on the merits.
"But I think the plaintiff is going to run into some problems at the certification stage given that a large portion of almond milk (and soy-, and rice-, and coconut-, and macadamia-, and every other type of “milk” beverage out there) consumers buy the products for reasons other than nutritional equivalency to dairy milk.
“Some drink it for ethical reasons. Others for the taste. Still others drink it precisely because of its nutritional differences from milk [for example, almond milk has less sodium than dairy milk, is lower in sugar and calories, and has less saturated fat than 2% or whole milk]. I suspect that’s going to be a hurdle for them.”
Plaintiff will need to present consumer perception data
As for the ‘imitation milk’ angle, he said: “The defendant may argue that the product isn’t a milk substitute/imitation, and thus isn’t subject to 21 CFR 101.3. But if they’re marketing and labeling it as such, I don’t see that argument having legs…
“But again, it comes back to certification. Where do those claims [eg. that Almond Breeze is a ‘deliciously creamy alternative to dairy and soymilk’] appear? How often? How long have they been used? How many members of the proposed class are likely to have seen and relied upon the claims? Unless it’s a claim that appeared on the label without interruption for significant period of time, variability in the labeling and marketing will make class certification difficult.”
In terms of consumer data to support the allegations, he said, “I think it’s going to be absolutely necessary for Plaintiff to present consumer perception data (in the form of an admissible survey) showing not only that consumers perceive the product to be nutritionally equal to dairy, but also that its material in their purchasing decisions.”
PLAINTIFFS FACE UPHILL BATTLE
"These cases attempt to litigate an issue that has already been decided. Courts have found, as matter of law, that no reasonable consumer would confuse plant-based beverages, such as soymilk or almond milk, with dairy milk because of the word 'milk.'
"The 'nutritional equivalency' angle is a new approach, and I would bet that it results from the proposed DAIRY PRIDE Act, which makes a similar claim – but I don’t think it will be effective... Courts have rejected the argument that consumers are confused between the products, and the nutritionals for each product are clearly set out on their Nutrition Facts panels.
"For the same reasons, I would expect courts to reject plaintiffs’ argument that almond milk should be labeled as 'imitation milk.' That regulation applies where a substitute food cannot otherwise be distinguished from its traditional counterpart and where it has no 'common or usual name.' The FDA uses 'imitation crabmeat' as an example (61 FR 29702). Courts have already found that plant-based milk products are properly identified by their 'common or usual names' and that these terms are understood by consumers."
Rebecca Cross, Davis Wright Tremaine LLP
Could this be the start of something?
So could this be the start of a new wave of plant ‘milk’ lawsuits, despite the challenges raised by the attorneys we've spoken to?
Possibly, said Kaiser: “It’s not hard to imagine that the firm that brought this suit isn’t also evaluating every other soy-, almond- and rice-milk producer and cranking out cookie-cutter complaints, or demand letters.”
However, one line of defense could be to argue that such cases should be stayed on primary jurisdiction lines should the FDA decide to take a look at this issue in light of requests from lawmakers and other groups, he said.
"Over time, standards of identity were used offensively by certain portions of the food industry, e.g. dairy, chocolate, juice, to keep competitors from using the established names on products similar to those following SOIs. It was my impression that these efforts were less about consumer protection and more about protectionism. It often was used with effect to keep these other products out of the market. If the products were not nutritionally equivalent there were then deemed to be 'imitation.' Obviously calling something 'imitation' isn’t particularly helpful to selling the product, which of course was the whole point of the exercise."
Defendants will "likely argue that no sentient consumer would be misled by either the nomenclature itself or the claims."
Allan Zackler, partner, Wendel, Rosen, Black & Dean LLP
Representatives from Blue Diamond and WhiteWave Foods both told FoodNavigator-USA that they do not comment on pending litigation.
*The cases are: Cynthia Cardarelli Painter et al v Blue Diamond Growers, BC 647816; Melanie Kelley et al v WWF Operating Company, dba Whitewave Services, 1:17-cv-00117
"The Almond Board of California is not privy to this lawsuit, however we can provide some context around almond milk: Nutrition facts are clearly stated on all packaged foods, including almond milk, allowing consumers to make choices based on their individual nutrition and lifestyle needs.
"Almond milk is appealing for a variety of reasons. The product has no saturated fat or cholesterol, many varieties are fortified with calcium and vitamin D, and unsweetened products can have 0 grams of sugar and as few as 30 calories per serving. It is also a satisfying option for people who are looking to avoid lactose or eat fewer animal products."
Carissa Sauer, Manager, Industry Communications, Almond Board of California