Almond Milk Labeling Not Deceptive, 9th Cir. Says (Corrected)

Blue Diamond Growers beat back an appeal of a ruling that threw out a proposed class suit challenging the labeling of almond milk beverages.

Cynthia Painter alleged the products should be labeled “imitation milk” because they substitute for and resemble dairy milk but are nutritionally inferior to it.

But Painter didn’t allege a plausible claim, the U.S. Court of Appeals for the Ninth Circuit said Dec. 20 in an unpublished opinion.

Consumers wouldn’t be duped into believing that Blue Diamond’s almond milk products are nutritionally equivalent to dairy milk based on their package labels and advertising, the court said.

A reasonable consumer wouldn’t assume that two distinct products have the same nutritional content, the appeals court said.

Nor are the products mislabeled in violation of federal law, the court said. Almond milk isn’t an “imitation” of dairy milk within the meaning of federal regulations because it is a different product, the court said.

The court also said federal food labeling law preempts the claims.

Dairy farmers are facing increased competition from plant-based producers who sell alternatives to cow milk, including from sources like almonds, soy, and cashews.

The Food and Drug Administration earlier this year said it’s seeking information from producers and other experts on how consumers use plant-based dairy substitutes like almond milk, the first step in what could result in a major change in how those products are labeled.

The agency wants to determine whether Americans understand how the substitutes differ from cow milk in terms of nutritional content and how they react during cooking.

Capstone Law APC represented the plaintiffs. Hanson Bridgett LLP represented Blue Diamond.

The case is Painter v. Blue Diamond Growers, 2018 BL 472638, 9th Cir., No. 17-55901, unpublished 12/20/18.