In the lawsuit vs WhiteWave, originally filed in late June, plaintiffs Tracy Albert and Sandy Karacsony argue that WhiteWave falsely portrays its best-selling Silk almond milk as being made primarily from almonds.
In fact, they allege, it contains only 2% almonds and is mostly made from water and "various types of thickening agents, such as locust bean gum, gellan gum, xanthan gum, and carrageenan [editor's note: WhiteWave has recently removed xanthan gum and carrageenan from Silk almond milk]."
The lawsuit does not state the exact percentage of almonds a reasonable consumer would expect to see in a commercial almond milk product, although it notes that “upon an extensive review of the recipes for almond milk on the internet, the vast majority of the recipes call for one part almond and three or four parts water."
Plaintiffs: 'The products only contain 2% of almonds'
The phrase ‘Discover the tempting taste of almonds’ coupled with multiple pictures of almonds on the packaging also reinforces the notion that Silk almond milk is mostly made from almonds, says the lawsuit - which is nearly identical to the one filed vs Blue Diamond.
"WhiteWave is selling products that are branded as almond milk, and leading people to believe that the products are made primarily from almonds when the products only contain 2% of almonds.
"[This] has created a false perception amongst the public that Defendant’s almond milk labeled products are premium products that are healthy for you because they are primarily made from almonds."
Ingredients list: Silk almond milk
According to the Silk website, the ingredients list for Silk original almond milk is: Almondmilk (Filtered Water, Almonds), Cane Sugar, Sea Salt, Locust Bean Gum, Sunflower Lecithin, Gellan Gum, Calcium Carbonate, Vitamin E Acetate, Vitamin A Palmitate, Vitamin D2.
Defendant 'uses the same deceptive practices in selling soy milk, coconut milk, and cashew milk branded products...'
WhiteWave Foods does not disclose how much almond is in Silk almond milk in the US. However, its UK almond milk brand Alpro contains 2% almond milk, which the plaintiffs in the US lawsuit have seized upon:
"Defendant discloses to consumers in the UK that its almond milk labeled products contain 2% of almonds but does not disclose that to consumers in the US... WhiteWave uses the same deceptive practices in selling soy milk, coconut milk, and cashew milk branded products in that said products contain a tiny fraction of the plant-based ingredient being advertised that the drink is made from, and is really made from less costly thickening agents."
According to IRI multi-outlet data, US retail sales of almond milk rose from $686.6m in 2013 to $946m in 2014 (refrigerated: $854.3m + shelf-stable: $91.7m), a 38% rise. Volumes rose 28.4%. However, if you include sales from outlets not covered by IRI such as Whole Foods, ALDI and Trader Joe’s, Packaged Facts estimates 2014 sales were likely closer to $1.19bn.
According to Packaged Facts, almond milk is taking share from dairy milk but also from soy milk, sales of which plummeted 16.1% to $346m in 2014.
Focusing on the small amount of almonds in almond milk is a new line of attack for plaintiff’s attorneys in the US, who have historically targeted almond milk companies for using the term ‘milk’ to describe a non-dairy beverage, or ‘evaporated cane juice’ to describe sugar.
However, the line of attack is similar to that deployed in the high-profile POM v Coke lawsuit, in which POM Wonderful accused Coca-Cola of misleading shoppers by marketing a juice comprised almost entirely of apple and grape juice as a ‘Pomegranate Blueberry flavored blend of 5 juices’ (the juice contained just 0.3% pomegranate juice and 0.2% blueberry juice).
Attorney: Echoes of POM v Coke
So what do food law attorneys make of these cases?
David L. Ter Molen, a partner in the Chicago offices of law firm Freeborn & Peters LLP, told FoodNavigator-USA that he saw clear echoes of the POM v Coke lawsuit: “In both instances, the lawsuits claim that a product’s name highlights one or more ingredients that only make up a small fraction of the product, and thus misleads consumers into believing that the product is primarily made from those ingredients.
“I expect to see similar lawsuits in the future involving products having ingredients in their names where the product allegedly only contains a small amount of that ingredient.”
WhiteWave Foods: 'We believe lawsuits like this one have no merit'
WhiteWave Foods told FoodNavigator-USA that it "does not discuss details of pending litigation... However, we remain confident that our labeling is accurate and the contents of our almondmilk are correctly listed within our ingredient panel. We will continue to aggressively defend the labeling of Silk almondmilk products because we believe lawsuits like this one have no merit."
A spokesperson added: "Like most food companies, we do not share our exact product recipes, but we can share that our almondmilk is made with:
- Almonds
- Water
- Sugar
- Locust bean gum, gellan gum and sunflower lecithin, which are emulsifiers and stabilizers. We include them in our recipes because they ensure the product doesn’t separate, and maintain the product’s quality and texture.
- Natural flavor
- Sea salt
- Vitamins and minerals
"Combined, these ingredients deliver the quality and taste that our consumers know and love."
*The cases - both filed by law firm James C Kelly in the southern district of New York - are: Sandy Karacsony and Tracy Albert et al vs WWF Operating Company 1:15-cv-04870-VM and Tracy Albert and Dimitrios Malazianis et al vs Blue Diamond Growers Case 1:15-cv-04087-VM. The cases have now been consolidated into one class action: Case 1:15-cv-04087-VM