Ninth Circuit gives short shrift to nutritional equivalence argument in plant ‘milk’ case

04-Jan-2019 - Last updated on 04-Jan-2019 at 16:31 GMT

Ninth Circuit memo: 'A reasonable jury could not conclude that almond milk is ‘nutritionally inferior’ to dairy milk … as two distinct food products necessarily have different nutritional profiles.' Picture: Almond Breeze

The Ninth Circuit court of appeals has upheld the dismissal of a class action alleging Almond Breeze almondmilk should be labeled as ‘imitation milk,’ and argued that reasonable consumers would not assume from the packaging that it is nutritionally equivalent to dairy milk.

Rather than dwelling on alleged violations of the standard of identity for milk (which limit it to the lacteal secretion of cows), plaintiffs in recent lawsuits have instead focused on the nutritional differences between leading 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.'

In an order dismissing one such case* vs brand owner Blue Diamond Growers in May 2017 on the grounds of federal pre-emption, Judge Stephen V. Wilson added that: “A reasonable consumer, indeed even an unsophisticated consumer, would not assume that two distinct products have the same nutritional content.”

Plaintiff Cynthia Painter appealed Wilson’s order, which was sent to the Ninth Circuit court of appeals for review.

On December 20, 2018, however, the Ninth Circuit agreed with Wilson via a memo judgement (which does not set a legal precedent, meaning other courts can’t cite it), concluding that “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.”

The unpublished memo added: “A reasonable jury could not conclude that almond milk is ‘nutritionally inferior’ to dairy milk … as two distinct food products necessarily have different nutritional profiles.”

GFI: A good result… although other courts can’t cite it

Jessica Almy, director of policy at the Good Food Institute (GFI), which wrote an amicus brief in the case supporting defendant Blue Diamond Growers, welcomed the memo, telling FoodNavigator-USA that it was “not precedential, sadly - meaning that other courts can't cite it - but a good result all the same.”

In the amicus brief, GFI attorney Nigel Barrella argued that the Food, Drug and Cosmetic Act’s ‘imitation’ provision does not apply to products such as almondmilk, adding that requiring Almond Breeze to be labeled imitation milk would open a Pandora’s Box:

“Rye bread and cornbread would be ‘imitation bread,’ just as rice noodles and cellophane noodles would be ‘imitation noodles,’ and turkey bacon and veggie bacon would be ‘imitation bacon’ — the list goes on. The absurdity of this interpretation speaks for itself."

In a GFI blog post penned after the ruling, Barrella added: “The dairy industry’s argument is not just an absurd distortion of the law, but it also would violate the First Amendment. Food producers have free speech rights too, and the government cannot force them to use vague and derogatory names like ‘imitation milk.’"

*The case is Cynthia Cardarelli Painter et al v Blue Diamond Growers, 2:17-cv-02235