Judge takes wind out of plaintiffs’ sails in ‘2% almonds’ false advertising class action vs WhiteWave, Blue Diamond

In an Oct 21 order granting in part and denying in part the defendants’ bids to dismiss the case, US district judge Victor Marrero said that in order to seek injunctive relief – ie. to get the defendants to change their labels – the plaintiffs must demonstrate a likelihood of future injury, but had failed to do so.

He added: “Plaintiffs do not have standing to seek injunctive relief because they have not alleged that they will purchase defendants' almond milk labeled products in the future. Because they do not have individual standing, they also do not have standing on behalf of putative New York and California classes. Accordingly, this court dismisses the plaintiffs' request for injunctive relief​.”

However, he did find that the plaintiffs had sufficiently alleged causes of action under New York’s General Business Law § 349 and California’s Unfair Competition Law (UCL).

As for damages, he said: “Because it is not necessary to resolve at this stage of the litigation whether Plaintiffs can seek damages under the UCL in a class action context, the Court need not address this issue.”​

Top almond milk brands are mostly water, sugar and thickeners, claim plaintiffs​

The case – which consolidates two separate class action lawsuits vs WhiteWave Foods and Blue Diamond – relates to the way they market two leading brands of almond milk: Silk and Almond Breeze.

The plaintiffs allege the pair falsely portray the best-selling brands as being made primarily from almonds, when they allegedly contain only 2% almonds and are mostly made from water, sugar, and "various types of thickening agents”.​

The lawsuits do not state the exact percentage of almonds a reasonable consumer might expect to see in a commercial almond milk product, although they note 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."​

Phrases such as ‘Discover the tempting taste of almonds’ coupled with multiple pictures of almonds on the packaging also reinforces the notion that the almond milks are mostly made from almonds, they argue.

Echoes of POM v Coke...​

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).

How have the firms dealt with the allegations?

WhiteWave Foods​ told FoodNavigator-USA that it was “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.​

“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; and vitamins and minerals.”​

Blue Diamond​ told us that the primary ingredient in most leading beverages - from cow's milk to soy milk and almond milk - was water: "At Blue Diamond, we’re proud to deliver Almond Breeze to a very loyal and growing base of customers seeking alternatives to dairy and soymilk. ​

"The primary ingredient in nearly all popular beverages including coffee, tea, soda, juice and sports drinks is water​.  Cow’s milk is 85% to 95% water and the same can be said for most soy and almond milks which is why our brand is not alone in responding to recent claims.​

"Almond Breeze is made with water, carefully selected almonds and quality ingredients using a unique formula.  Specifics regarding our formulation and processing techniques are proprietary but we list all our ingredients and nutritional information on our product label."​

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.  

Packaged Facts, meanwhile, says almond milk is taking share from dairy milk but also from soy milk, sales of which plummeted 16.1% to $346m in 2014.

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