soy and almond milk couldn't deceive reasonable consumers

Ang v. Whitewave Foods Co., No. 13-cv-1953, 2013 WL 6492353 (N.D. Cal. Dec. 10, 2013)

Plaintiffs sued over defendants’ Silk and Horizon products. The Silk products are plant-based beverages, including Silk Vanilla Soymilk, Silk Almond Milk, and Silk Coconut Milk.  The Horizon products are yogurt and milk products.  The court dismissed the usual California claims with prejudice.

Plaintiffs alleged that the terms “sugar” or “dried cane syrup” should have been used on the products instead of “evaporated cane juice.”  Also, the Silk products were allegedly misbranded because “milk” is a substance that comes from lactating cows.  The first set of claims was dismissed because of res judicata: a valid prior class settlement in a Florida action alleging the same misbranding argument.

Defendants argued that the milk claims were also precluded because they only targeted products that contained evaporated cane juice, but that wasn’t true: the settlement barred claims related to use of the term evaporated cane juice, not all claims relating to products that contained evaporated cane juice.

However, the milk claims were preempted by the FDA’s standard of identity rules.  “A standard of identity is a requirement that determines what a food product must contain to be marketed under a certain name.”  The FDA requires a food to be identified by its common or usual name.  Though the FDA defines “milk,” the court found that this “pertains to what milk is, rather than what it is not, and makes no mention of non-dairy alternatives.”  (I don’t get this reasoning.  So if there’s no milk in the product at all, it can be called milk without regard to the FDA definition?)

Plaintiffs also noted FDA warning letters to soymilk makers that warned manufacturers that “soymilk” was misbranded because of use of the term milk.  But these brief statements were “far from controlling,” especially since the FDA “regularly uses the term soymilk in its public statements, suggesting that the agency has yet to arrive at a consistent interpretation … with respect to milk substitutes.”  Because the FDA had yet to mandate a name, the court went to the “common or usual” name requirement; that requires each class or subclass of food to have its own common or usual name that clearly states what it is in a way that distinguishes it from different foods.  That name can be established by common usage.

Here, the court found that “soymilk,” “almond milk,” and “coconut milk” accurately described the products:

As set forth in the regulations, these names clearly convey the basic nature and content of the beverages, while clearly distinguishing them from milk that is derived from dairy cows. Moreover, it is simply implausible that a reasonable consumer would mistake a product like soymilk or almond milk with dairy milk from a cow. The first words in the products’ names should be obvious enough to even the least discerning of consumers. And adopting Plaintiffs’ position might lead to more confusion, not less, especially with respect to other non-dairy alternatives such as goat milk or sheep milk. 

(Ed. note: non-dairy?)  As a result, the claims were preempted as attempting to impose standards not identical to FDA standards.

Also, the court independently found that plaintiffs’ claims flunked Iqbal/Twombly’s plausibility standard, for much the same reason already articulated: the use of “soy” and “almond” made it implausible that a reasonable consumer would be confused, “disregard the first words in the names, and assume that the beverages came from cows.… Under Plaintiffs’ logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”