Monday, December 24, 2018
Page 1
Ninth Circuit:
Company Does Not Deceive Consumers By Labeling Product ‘Almond Milk’
Opinion Says Purchasers Would Not Suppose Blue Diamond’s Beverage Is Nutritional Equivalent to Dairy Milk; No Need to Call It ‘Imitation Milk’
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has affirmed the dismissal of a putative class action against Blue Diamond Growers by a woman who claims the company is engaged in a deceptive practice by labeling a beverage made from ground almonds and water as almond “milk.”
Cynthia Painter, a Long Beach realtor, brought her action in Los Angeles Superior Court on Feb. 24, 2017, and on March 22 of that year, Blue removed it to the U.S. District Court for the Central District of California, based on diversity of citizenship. The lawsuit alleges violations of California’s Unfair Competition Law, False Advertising Law, and the Consumers Legal Remedies Act.
Painter asserted that Blue Diamond seeks to deceive consumers into believing that “Almond Breeze” brand almond milk (which Blue Diamond spells as “almondmilk”) is “nutritionally equivalent, and even superior, to dairy milk.”
Affirms Wilson’s Order
A three-judge panel on Thursday affirmed the May 24, 2017 dismissal of her action, with prejudice, by Judge Steven V. Wilson, who said in his order:
“Plaintiff attempts to distinguish the three cases that have adjudicated this exact issue by claiming that her allegation is not that consumers will confuse almond milk for cow’s milk, but rather that consumers will be deceived into thinking almond milk has the same nutritional value as cow’s milk….This is a distinction without a difference. No reasonable consumer could be misled by Defendant’s unambiguous labeling or factually accurate nutritional statements….By using the term ‘almond milk’, even the least sophisticated consumer would know instantly the type of product they are purchasing. If the consumer is concerned about the nutritious qualities of the product, they can read the nutrition label—which Plaintiff does not allege is false or misleading.”
The Ninth Circuit panel—comprised of Senior Circuit Judge Dorothy W. Nelson, Circuit Judge Kim Wardlaw, and Robert W. Pratt, a judge of the District Court for the Southern District of Iowa, sitting by designation—said a memorandum opinion:
“Painter’s complaint does not plausibly allege that a reasonable consumer would be deceived into believing that Blue Diamond’s almond milk products are nutritionally equivalent to dairy milk based on their package labels and advertising.”
Unlike Gerber Case
The opinion contrasts this with the situation the Ninth Circuit dealt with in the 2008 case of Williams v. Gerber Products Co. There, the court reversed the dismissal of a case alleging deception in the marketing of a snack food for young children, saying:
“Here, there are a number of features of the packaging Gerber used for its Fruit Juice Snacks product which could likely deceive a reasonable consumer. The product is called ‘fruit juice snacks’ and the packaging pictures a number of different fruits, potentially suggesting (falsely) that those fruits or their juices are contained in the product. Further, the statement that Fruit Juice Snacks was made with ‘fruit juice and other all natural ingredients’ could easily be interpreted by consumers as a claim that all the ingredients in the product were natural, which appears to be false. And finally, the claim that Snacks is ‘just one of a variety of nutritious Gerber Graduates foods and juices that have been specifically designed to help toddlers grow up strong and healthy’ adds to the potential deception.”
Painter—who wanted Blue Diamond to be required to label its product “imitation milk”—acknowledged that state law may not mandate food labeling that differs from federal requirements, but maintained that what she proposes is in conformity with the federal Food Drug & Cosmetic Act (“FDCA”).
|
|
|
Depicted is Blue Diamond’s brand of almond milk (which it spells as one word). The Ninth Circuit on Thursday held that the marketing of the product—made from ground nuts and water—as a “milk” would not lead a reasonable consumer to believe it is the nutritional equivalent of dairy milk. |
Accurate Description
Disagreeing, Wilson said:
“The FDCA requires food to be labeled in a way that accurately describes ‘The basic nature of the food or its characterizing properties or ingredients.’…‘Almond milk” accurately describes Defendant’s product.”
The Ninth Circuit opinion declares:
“Almond milk is not an ‘imitation’ of dairy milk….Notwithstanding any resemblance to dairy milk, almond milk is not a ‘substitute’ for dairy milk…because almond milk does not involve literally substituting inferior ingredients for those in dairy milk….In addition, a reasonable jury could not conclude that almond milk is ‘nutritionally inferior’ to dairy milk…as two distinct food products necessarily have different nutritional profiles.”
The case is Painter v. Blue Diamond Growers, 17-55901.
Copyright 2018, Metropolitan News Company