Ninth Circuit Not Confused by Almond Milk

Advertising Law

The U.S. Court of Appeals for the Ninth Circuit handed a victory to the makers of almond milk in a false advertising suit, affirming dismissal of the lawsuit after finding it implausible that consumers would confuse the drinks with cow milk.

Cynthia Painter alleged that Blue Diamond Growers mislabeled its almond beverages as “almond milk” when they should have been labeled “imitation milk” because they act as a substitute for and resemble dairy milk but are nutritionally inferior to it.

A district court judge in California granted the defendant’s motion to dismiss the suit and the federal appellate panel affirmed in an unpublished opinion, ruling that both federal pre-emption and the reasonable consumer standard foreclosed the putative class action.

The federal Food, Drug and Cosmetic Act (FDCA) (as amended by the Nutrition Labeling and Education Act) features a “broad preemption” provision, the court said, which prohibits a state from “directly or indirectly establish[ing]” food labeling requirements “not identical to” federal requirements. As Painter’s mislabeling claims seek to use state law to impose labeling requirements that are “not identical” to the FDCA, they are pre-empted, the panel said.

“The FDCA sets forth the bare requirement that foods imitating other foods bear a label with ‘the word “imitation” and, immediately thereafter, the name of the food imitated,’” the Ninth Circuit wrote. “Therefore, Painter’s claim that Blue Diamond must additionally include either a nutritional comparison of almond milk to dairy milk or cease using the term ‘milk’ on the label of its almond milk products conflicts with the FDCA.”

The court determined that almond milk is not an “imitation” of dairy milk within the meaning of the FDCA and is not a “substitute” for dairy milk “because almond milk does not involve literally substituting inferior ingredients for those in dairy milk.” In addition, the court found that 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.”

As for Painter’s claims under California’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act, they failed to meet the “reasonable consumer” standard that members of the public are likely to be deceived by the defendant’s labeling and advertising practices, the court said.

Not only did Painter concede that Blue Diamond accurately labels and advertises its almond milk products, but she also failed to plausibly allege that the beverages are mislabeled in violation of federal law. Almond milk is not a substitute for dairy milk, and as two distinct food products, almond milk and dairy milk have different nutritional profiles, the court said.

“As the district court concluded, it is not plausible that a reasonable consumer would ‘assume that two distinct products have the same nutritional content,’” the panel held.

Rejecting the plaintiff’s request for leave to amend her complaint, the court said no changes could improve the consumer confusion allegations Painter asserted, affirming dismissal of her lawsuit with prejudice.

To read the memorandum in Painter v. Blue Diamond Growers, click here.

Why it matters: The Ninth Circuit rebuffed the plaintiff’s appeal on multiple grounds, finding that the FDCA provided federal pre-emption of the putative class action and the state law claims failed to satisfy the “reasonable consumer” standard. Members of the public would not be confused by the labeling of the defendant’s almond milk, the panel said, as the beverage is a completely different product—with a distinct nutritional profile—than dairy milk.



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