Rather than dwelling on alleged violations of the standard of identity for milk (a debate that’s been reignited via The Dairy Pride Act), plaintiffs in recent lawsuits* filed by Lee Cirsch at Capstone Law APC focus on the nutritional differences between leading two almondmilk brands 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.
They also argue that such products should be labeled 'imitation milk.'
Blue Diamond judge: ‘The claim of customer confusion is patently implausible’
Stephen Wilson, the district judge handling the case against Blue Diamond Growers (Almond Breeze) in the central district of California was not persuaded by this argument, however.
In a May 24 court order dismissing the case with prejudice, he argued that it is preempted by federal food labeling laws and that the “claim of customer confusion is patently implausible.”
He added: “By using the term almond milk, even the least sophisticated consumer would know instantly the type of product they are purchasing. If the consumer is concerned about the nutritious qualities of the product, they can read the nutrition label…”
Whitewave judge: ‘This is an issue of first impression’
But Lawrence O'Neill, the chief district judge handling a near-identical case against Whitewave (Silk) in the eastern district of California, felt things were not so clear cut in his June 6 order, and stayed the case on the grounds of primary jurisdiction (ie. this is a matter best left to the FDA for the time being).
He explained: “Though neither party acknowledges it, plaintiff’s position—that defendant’s [Silk] almondmilk is mislabeled in that it should be labeled as an ‘imitation’—is an issue of first impression. The court has conducted extensive research and is unable to locate any authority that suggests the issue has been considered officially by the FDA or the courts.
“The issue of whether defendant’s products (or any other plant-based 'milk') should be deemed an 'imitation' under § 101.3(e) fits squarely within the FDA’s authority, and will require the agency’s expertise in determining how to fashion labels so they adequately inform consumers…
“This court is not the appropriate forum to decide in the first instance whether almondmilk 'substitutes for,' is 'nutritionally inferior' to, and 'resembles' dairy milk such that it should be labeled 'imitation' milk under § 101.3(e)—an issue which forms the entire basis for plaintiff’s case.”
"The issue of whether... plant-based 'milk' should be deemed an 'imitation' fits squarely within the FDA’s authority..."
US district judge Lawrence O'Neill
‘The FDA should at the very least have the opportunity to decide whether it will address the issue’
While the FDA has not opined on the plant milk issue in recent months or years - a fact that has frustrated both the dairy lobby and some plant-based dairy brands alike - the issue is on the agency’s “radar,” he claimed, adding: “The FDA should at the very least have the opportunity to decide whether it will address the issue.”
As for previous court rulings in plant milk false advertising cases (click HERE), these focused on whether terms such as 'almond milk' violated federal standards of identity for milk, not on whether such products were "mislabeled because they are ‘imitations,’ like plaintiff alleges here,” he argued.
“This lawsuit is an attack on the entire plant-based beverage industry…”
WhiteWave Foods, motion to dismiss, March 22, 2017
Plant Based Food Association: 'The claims do not even pass the plausibility test'
So what does the Plant Based Foods Association (PBFA) make of the two orders?
Executive director Michele Simon told FoodNavigator-USA that “the judges in both cases came to a similar conclusion: That the courts are not the proper venue for this issue.”
Asked whether judge O'Neill's comments in the Whitewave case would finally prompt the FDA to weigh into the plant ‘milk’ labeling issue, she said: “I don’t see the decision as putting any additional pressure on FDA [with which the PBFA has been meeting to discuss plant-based labeling conventions in recent weeks]. That agency is still underfunded and has far more important priorities such as food safety.”
The decision in the case vs Blue Diamond (which was thrown out) “is more on point,” she argued. “The claims do not even pass the ‘plausibility test’, as consumers are smart enough to realize different products have different nutrient profiles.”
Attorney: This isn't a legal issue of 'first impression'
Nigel Barrella, an attorney who worked on The Good Food Institute's petition to FDA [click HERE] on plant milk labeling conventions, told FoodNavigator-USA that he disputed the court's characterization of this as a legal issue of 'first impression...'
"The way FDA defined 'imitation' decades ago is clear and easy to apply in this case. Distinct new foods that are given their own names are not 'imitations.' The court believed the law in this area was unsettled, in part because there have been so few cases about imitations since FDA defined the term. But there's a very good reason we don't see more 'imitation' cases; under clearly established law, it almost never applies in the modern marketplace."
Are rice noodles 'imitation noodles?'
He added: "If the plaintiffs in this case were right, then federal law would require almond milk and soymilk and even goat's milk to be labeled 'imitation milk,' and would forbid these products from using any other name besides "'imitation milk.' And as we pointed out in GFI's petition, it would call into question the names of many other products. Are rice noodles 'imitation noodles?' I'm confident that when FDA addresses GFI's petition, or if FDA gives some other response to the court's decision, it will easily reject the notion that 'imitation' labeling should apply to products like almond milk."
Asked whether the court order put additional pressure on the FDA to weigh into the plant milk debate, he said: "It does put pressure on FDA to respond to GFI's petition; the court even mentioned GFI's petition as a way FDA could address the issue.
"The court's ruling also proves a point we made in the petition, that without FDA's explicit guidance, there will continue to be needless arguments about labeling these products."
Blue Diamond: It's all about choice
WhiteWave Foods (now part of DanoneWave) told FoodNavigator-USA that it did not comment on pending litigation, while Blue Diamond Growers welcomed news that the case against it had been tossed.
A spokesperson added: "Blue Diamond agrees with the court’s decision. Consumers deserve many choices when it comes to their health preference and needs. Almondmilk has proven to be a satisfying option for people who are looking to avoid lactose; eat fewer animal products or less soy; and, in the case of unsweetened almondmilk, watch their calories or sugar. Blue Diamond ensures every carton of AlmondBreeze almondmilk clearly identifies the ingredient and nutrition information so consumers can choose the best option for them."
*The cases are: Cynthia Cardarelli Painter et al v Blue Diamond Growers, 2:17-cv-022235; Melanie Kelley et al v WWF Operating Company, dba Whitewave Services, 1:17-cv-00117
The ‘nutritional equivalency’ argument has not just been raised by the dairy lobby, with Adam Lowry, the cofounder of pea milk brand Ripple, recently arguing that consumers are laboring under the misconception that almond milk is a good source of protein, when in fact it is low in protein.
"The fact is that many nut milk drinkers think that those nut milks are a good source of protein, whether they claim to be or not. That’s the sham – that consumers think they are getting the same nutrition as dairy milk when they aren’t."
However, the Almond Board of California explained that, "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."