Wednesday, October 09, 2013

The milk of human lawsuits

Gitson v.Trader Joe’s Company, No. 13–cv–01333, 2013 WL 5513711 (N.D. Cal. Oct. 4, 2013)
Plaintiffs sued over “evaporated cane juice” and got basically the result in Wallaby, previously summarized.  They also alleged that certain soy milk products were labeled “milk” but didn’t comply with the FDA definition thereof: “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”
Trader Joe’s responded that a reasonable consumer couldn’t have been misled because the label explicitly stated that it was LACTOSE & DAIRY FREE on its front and back.  Trader Joe’s contended that soy milk “has become a very popular alternative to dairy milk” and that “soy milk has a well-established meaning separate and apart from the word milk.”
The court was not willing to find that “soy milk,” standing alone, was so well-known that a reasonable consumer, as a matter of law, couldn’t be confused.  The FDA’s warning letters advise against using the term.  But here, the allegedly misleading term was coupled with an explicit disclaimer that the product was “LACTOSE & DAIRY FREE” and was an “alternative to dairy milk.”  In light of that disclaimer, it was not plausible that a reasonable consumer would believe that Trader Joe’s Organic Soy Milk was cow’s milk and had the same qualities as cow’s milk.
Plaintiffs argued that the FDA disagreed, given its warning letters. But these were “informal and advisory”; they supported a claim of unlawfulness under the UCL, but not misleadingness given the specific prominent disclaimer at issue.  In light of the warning letters, though, it was plausible that the product was misbranded.

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