Almond milk name isn't deceptive to reasonable consumers

Painter v. Blue Diamond Growers, No. 17-55901, 2018 WL 6720560, --- Fed.Appx. ---- (9th Cir. Dec. 20, 2018)

Painter alleged that Blue Diamond mislabeled its almond beverages as “almond milk” when they should be labeled “imitation milk” because they substitute for and resemble dairy milk but are nutritionally inferior to it. The court of appeals affirmed the district court’s finding of FDCA preemption. “The FDCA sets forth the bare requirement that foods imitating other foods bear a label with ‘the word “imitation” and, immediately thereafter, the name of the food imitated.’”  Painter’s argument that Blue Diamond needed either a nutritional comparison of almond milk to dairy milk or cease using the term “milk” on the label of its almond milk products thus conflicted with the FDCA.

Separately, the claim was properly dismissed as implausible.  No reasonable consumer would be deceived into believing that Blue Diamond’s almond milk products were nutritionally equivalent to dairy milk based on their package labels and advertising, which was unambiguous and factually accurate. Nor were the products plausibly mislabeled under federal law.  Almond milk wasn’t an “imitation” of dairy milk: “almond milk does not involve literally substituting inferior ingredients for those in dairy milk,” and a reasonable jury couldn’t conclude that almond milk was nutritionally inferior to dairy milk within the meaning of the law, because it wasn’t plausible that a reasonable consumer would “assume that two distinct products have the same nutritional content.”