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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