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GFI urges court to steer clear of labeling Blue Diamond almond milk as ‘imitation milk’

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The battle over whether plant-based products could use dairy terms is heating up again, this time fired up by a court debate over whether Blue Diamond is misleading consumers by using the term “milk” in their almond milk products.

In the latest action, plaintiff and California consumer Cynthia Painter is appealing a 2017 ruling, which supported Blue Diamond and stated that “no reasonable consumer could be misled” by the company’s labeling.

As the case is heading for review by a three-judge panel with the U.S. Court of Appeals for the Ninth Circuit, it is again pitting plant-based product advocates against dairy term purists, who argue that any product lacking the nutritional qualities of regular milk should be called “imitation” milk.

The Good Food Institute (GFI), a group that advocates for plant-based meat substitutes, has taken interest in the case in hopes that the panel upholds the lower court’s ruling and prevents others from making similar arguments in future cases. 

In a 45-page amicus brief filed March 9 in support of Blue Diamond, GFI cautions the appeals court that an overbroad interpretation of “imitation,” as defined in the federal Food, Drug and Cosmetic Act (FDCA), could “cast a regulatory cloud over many innovative new foods” and be detrimental for consumer choice and free market competition.”

“This case about almond milk carries broader implications,” wrote Nigel Barrella, GFI’s attorney, in the friend-of-the-court brief. “The sweeping, expansive definition of ‘imitation’ offered by Painter would also extend to a diverse array of products including coconut milk, soy milk, and goat milk, and would compel each of these distinct products to bear the same, uninformative name: ‘imitation milk.’”

Furthermore, adopting such a broad definition could impact a wide range of products, Barrella stated in the brief.

“Whatever the Ninth Circuit says, it is going to matter. So, this is a really important decision even though it is not a new issue,” Jessica Almy, GFI policy director

“Rye bread and cornbread would be ‘imitation bread,’ just as rice noodles and cellophane noodles would be ‘imitation noodles,’ and turkey bacon and veggie bacon would be ‘imitation bacon’ – the list goes on. The absurdity of this interpretation speaks for itself,” he wrote.

Additionally, Barrella argued that almond milk makers have a First Amendment right to call their products what they are and that attempting to censor plant-based milk makers violates their constitutional rights.

“…[U]nder modern jurisprudence, the ‘imitation’ provision raises serious concerns under the First Amendment as a regulation of commercial speech. This is especially true for a product with an established name like ‘almond milk,’ a name used in English since the 14th century,” Barrella noted.

He said that by not allowing Blue Diamond to label its product with an established name that consumers know, the plaintiff is seeking to force Blue Diamond to label its product with the “uninformative derogatory name ‘imitation milk,’” he stated.

“This is both a restriction on commercial speech (forbidding the use of the established name) and a compelled speech regulation (requiring the use of the ‘imitation’ name),” Barrella wrote. 

In support of this argument, Barrella also referenced a recent case in the 11th Circuit, (Ocheesee Creamery v. Putnam), in which the state of Florida enforced its “imitation” law to forbid a natural skim milk from using the words “skim milk,” because it did not include added vitamin A. While the state tried to force the creamery to call the skim milk an “imitation milk product,” a panel of judges from the U.S. Circuit Court of Appeals for the Eleventh Circuit in March decided unanimously that, by banning the creamery from using the term “skim milk,” the Florida Department of Agriculture and Consumer Services (FDACS) had violated the creamery's constitutional First Amendment rights.

“Analyzing this as a speech restriction under Central Hudson, the court found it unconstitutional as applied, noting that the state had ‘less restrictive and more precise means’ available, such as requiring disclosure of the missing vitamin A,” Barrella noted.

The original complaint

The GFI brief comes in response to a complaint that was originally filed in Jan. 23, 2017 in the Superior Court of the State of California, and later moved to the U.S. District Court for the Central District of California. The complaint was filed on behalf of Painter, a Long Beach, Calif. resident, who claimed she suffered financial damage when she purchased a falsely advertised product that claimed to be an alternative for cow’s milk.

According to Painter’s complaint, Blue Diamond deceptively portrayed its Almond Breeze products as nutritionally equivalent and even superior to regular dairy milk, when in fact they lack many of the nutrients and vitamins (such as calcium, vitamin D and vitamin E) normally found in dairy milk.

Painter argued that Blue Diamond was trying to capitalize on the growing popularity of plant-based products and stressed the product’s low-calorie and low-fat content, while at the same time downplaying the product’s lack of nutrients that are typically present in dairy milk.

Among other allegations, Painter said the company should be labeling its products as “imitation milk,” because the company uses the common or usual name of a food (i.e. milk) “but fails to reveal the basic nature and characterizing ingredients of the almond beverage.”

California District Judge Stephen Wilson, however, dismissed these arguments in May. In his decision, Wilson stated that no “reasonable consumer could be misled by Defendant’s unambiguous labeling and factually accurate nutrition statements.”

“By using the term ‘almond milk,’ even the least sophisticated consumer would know instantly the type of product they are purchasing,” Wilson wrote.

A case of great significance

GFI now hopes the appeals court will take a similar position. However, it is still unclear if the court will accept GFI’s amicus brief, especially because in an unusual move for such case, the plaintiff has decided to oppose the filing. That means judges will have to review the GFI brief in detail before they can decide whether it will be allowed, GFI Policy Director Jessica Almy told IEG Policy on Tuesday (March 12).

And while it may take as long as nine months for the appeals court to make a final decision on the case, GFI remains hopeful about the final outcome, Almy said.

The Painter vs. Blue Diamond case is certainly not the first to explore the question of whether plant-based milks should be labeled as “imitation milk,” Almy noted. However, the Blue Diamond case is notable because it is the first one to go to a Circuit Court of Appeals, she said.

“Whatever the Ninth Circuit says, it is going to matter," Almy said. "So, this is a really important decision even though it is not a new issue.”

A nearly identical lawsuit targeting WhiteWave Foods’ Silk Almondmilk filed in the eastern District of California was stayed in June on primarily jurisdictional grounds.  The case was filed by Melanie Kelley, another California resident, who like Painter argued that the Silk products had been misbranded under FDA Regulation, 21 C.F.R. § 101.3(e), "because they substitute for and resemble dairy milk, are nutritionally inferior to dairy milk,” and because they fail to put 'imitation milk' on their labels."

But Judge Lawrence O'Neill ruled that courts are not the “appropriate forum” to decide on whether almond milk is a substitute for or is nutritionally inferior to dairy milk, and that it would be best for FDA to decide on the matter.

“The issue of whether defendant’s products (or any other plant-based ‘milk’) should be deemed an imitation under § 101.3(e) fits squarely within the FDA’s authority and will require the agency’s expertise in determining how to fashion labels, so they adequately inform consumers,” O’Neill wrote in his ruling. 

After the ruling, Capstone Law APC, who represented Kelley, filed a petition with FDA on Dec. 5, 2017, asking the agency to weigh in on the issue.

Though GFI was encouraged by this ruling, the group hopes that if a higher court were to take a similar position, that would have wide reaching implications in curbing any further litigation on the issue, Almy said.

“I don’t presume to know what the court will do. But if previous cases are any indication, the Ninth Circuit is likely to find that consumers aren’t confused by almond milk labels. Almond milk is certainly not an imitation of cow’s milk, consumers know exactly what they are getting. It doesn’t substitute for cow’s milk or resemble cow’s milk in a way that court cases have said.” she said.

“Imitation is really about taking a product and watering it down in a cheap way that deceives consumers and almond milk is a completely different product that consumers are choosing because of the attributes it has,” she added.

GFI is not new to the debate over the permitted use of dairy terminology. In March 2017, the group petitioned FDA to codify its existing practice of allowing plant-based food producers to use “straightforward” terms such as soymilk or almond milk. The National Milk Producers Federation (NMPF) then urged the FDA to reject the petition - saying the request clashes with established laws and is inconsistent with FDA regulations - which state that 'milk' must come from an animal.

FDA however did not offer a resolution. In an Aug. 29, 2017 response, the agency said it has been too busy to reach a decision on the petition and may consider possible changes to its regulations “as warranted and in the context of other program priorities.”

 

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