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No Use Crying Over Spilled (Almond) Milk: Ninth Circuit Upholds Dismissal of Almond Milk Labeling Suit

On December 20, 2018, the Ninth Circuit affirmed the dismissal without leave to amend of a putative class action complaint against Blue Diamond Growers, which alleged that the term “almond milk” on Blue Diamond’s beverages was misleading. Painter v. Blue Diamond Growers, — Fed.Appx. —, 2018 WL 6720560 (9th Cir. Dec. 20, 2018). The named plaintiff, Cynthia Painter, argued that because almond milk is a substitute for dairy milk, but is not nutritionally equivalent, it was misleading for Blue Diamond not to disclose on the product label (i) that the product was an “imitation milk” and (ii) the nutritional differences versus dairy milk.

The Ninth Circuit upheld the lower court’s dismissal of Painter’s claims on three grounds. First, it found that Painter’s state law claims were preempted by the Food, Drug, and Cosmetic Act (“FDCA”) because the FDCA’s broad preemption provision prohibits states from imposing food labelling requirements that differ from federal requirements. The FDCA requires that foods imitating other foods bear a label with the word “imitation” and, immediately thereafter, the name of the food imitated. But Painter’s claim that Blue Diamond was required to also include a nutritional comparison of almond milk to dairy milk (or else cease using the term “milk”) conflicted with the FDCA, and was thus preempted.

Second, the Ninth Circuit found that Painter failed to plausibly allege that the absence of the word “imitation” on Blue Diamond’s labeling violated the FDCA. The Ninth Circuit held that almond milk did not constitute an “imitation” product under the FDA’s regulations given that “almond milk does not involve literally substituting inferior ingredients for those in dairy milk.” Nor was it plausible that a reasonable jury would believe almond milk is comprised of nutritionally inferior substitutes because dairy milk and almond milk are “two distinct food products” that “necessarily have different nutritional profiles.”

Finally, the Ninth Circuit found that the lower court properly dismissed the complaint because Painter had failed to show that a reasonable consumer would likely be deceived into thinking that almond milk and dairy milk were nutritionally equivalent. The Ninth Circuit contrasted Blue Diamond’s labeling practices with the labeling at issue in its decision in Williams v. Gerber (a case we have discussed in previous posts), where the court had found it was plausible that a reasonable consumer would be misled by a food label. Here, unlike in Williams, Blue Diamond’s labeling provided clear and correct information about its nutritional value, stating nothing that would mislead consumers about its contents. Thus, the Ninth Circuit upheld the lower court’s finding that “‘[n]o reasonable consumer could be misled by [Blue Diamond’s] unambiguous labeling or factually accurate nutritional statements.’”

Law clerk, Anisha Shenai-Khatkhate, contributed to this piece.

© 2020 Proskauer Rose LLP. National Law Review, Volume IX, Number 14


About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

Jeffrey H Warshafsky, Proskauer Law firm, Litigation Attorney

Jeffrey H. Warshafsky is an Associate in the Litigation Department, resident in the New York office. He is a commercial litigator with a particular emphasis on false advertising, trademark, and counterfeiting disputes. Jeff also advises clients on trademark portfolio management, anti-counterfeiting strategies, cybersquatting prevention, and other Internet-related trademark infringement matters.