While lawsuits alleging plant-based ‘milks’ violate standards of identity for ‘milk’ have not made any headway, more recent complaints (click HERE) against WhiteWave Foods and Blue Diamond Growers have adopted a different line of attack, arguing instead that Silk almondmilk and Almond Breeze are being falsely advertised as nutritionally equivalent – or superior to - dairy milk.
But this new line of attack is equally flawed, argued WhiteWave in a motion to dismiss a lawsuit* filed by plaintiff Melanie Kelley.
“In essence, the plaintiff is arguing that reasonable consumers … believe that the four letter word ‘milk’ carries a plethora of nutritional guarantees. This is unreasonable…
“Plaintiff believes that the discrete and limited nutritional comparisons lead reasonable consumers to make the cognitive leap to believing that Silk Almondmilk has equal or superior nutritional qualities across the board, with respect to every single nutrient possibly present in dairy milk…”
This is nonsense
“Plaintiff seems to assert that when comparing one product with another, it is deceptive not to disclose each and every nutritional difference and distinction between the two. This is nonsense,” added WhiteWave, which argued that the claims in the lawsuit are expressly preempted by federal food labeling laws and fall within the primary jurisdiction of the FDA.
The judge (Vince Chhabria) in a similar case against Trader Joe’s (Amy Gitson et al v Trader Joe’s Company) had already addressed the ‘nutritional equivalency’ argument and found it lacking, added WhiteWave, quoting Chhabria’s order: “A reasonable consumer (indeed, even an unsophisticated consumer) would not assume that two distinct products have the same nutritional content; if the consumer cared about the nutritional content, she would consult the label.”
“Plaintiff makes no allegation that any specific labeling claim on any of the products at issue is false. There is no allegation that any ingredient in any product was misrepresented on its label. There is no allegation that any Nutrition Facts panel incorrectly communicated the amounts of nutrients contained in any product. There is no allegation that WhiteWave made any specific marketing claim that was false.
“This lawsuit is an attack on the entire plant-based beverage industry…”
WhiteWave Foods, motion to dismiss, March 22 (Melanie Kelley et al v WWF Operating Company, dba Whitewave Services, 1:17-cv-00117)
Are e-books made out of paper?
In the case vs Trader Joe's, Judge Chhabria had also rejected the argument that terms such as 'almondmilk' and 'soymilk' violate the federal standard of identity for milk, which restrict it to the lacteal secretions of cows, noted WhiteWave.
The standard of identity for milk “does not categorically preclude a company from giving any food product a name that includes the word milk”, according to Chhabria.
US district judge Samuel Conti also threw out an earlier case (3:13-cv-01953) against WhiteWave Foods, noting that under the plaintiffs' logic, consumers might also "assume that 'flourless chocolate cake' contains flour or 'e-books' are made out of paper,” noted WhiteWave.
“Plaintiff’s far-fetched claims have been summarily disposed of not once, but twice in prior decisions (click HERE).”
The ‘nutritional equivalency’ argument has not just been raised by the dairy lobby, with Adam Lowry, the cofounder of pea milk brand Ripple, recently arguing that consumers are laboring under the misconception that almond milk is a good source of protein, when in fact it is very low in protein.
"The fact is that many nut milk drinkers think that those nut milks are a good source of protein, whether they claim to be or not. That’s the sham – that consumers think they are getting the same nutrition as dairy milk when they aren’t."
To support his point, Lowry referred to a 2015 Mintel/GMI Lightspeed survey of 1,090 internet users aged 18 that had consumed non-dairy milk in the previous three months in which 37% said they had done so because 'It's a good source of protein.'
"The #3 reason that people switch to non-dairy milks is they think 'it’s a good source of protein,'" said Lowry. "Yet almond, cashew, coconut, and rice milks are >80% of the category."
Attorney: Plaintiffs could face an uphill battle
So what do legal experts make of the case? A fertile new line of attack for plaintiff’s attorneys, or a stretch too far?
Ryan Kaiser, chair of the class action and business litigation team at law firm Amin Talati Upadhye, told FoodNavigator-USA back in January (when the cases were filed) that the new line of attack could prove more effective than simply going after the name (almondmilk), but that the plaintiffs could still face an uphill battle in their bid to get a class certified.
“I think the plaintiff is going to run into some problems at the certification stage given that a large portion of almond milk (and soy-, and rice-, and coconut-, and macadamia-, and every other type of “milk” beverage out there) consumers buy the products for reasons other than nutritional equivalency to dairy milk.
“Some drink it for ethical reasons. Others for the taste. Still others drink it precisely because of its nutritional differences from milk [for example, almond milk has less sodium than dairy milk, is lower in sugar and calories, and has less saturated fat than 2% or whole milk]. I suspect that’s going to be a hurdle for them.”
Rebecca Cross at Davis Wright Tremaine LLP, added: "The 'nutritional equivalency' angle is a new approach, and I would bet that it results from the proposed DAIRY PRIDE ACT, which makes a similar claim – but I don’t think it will be effective... Courts have rejected the argument that consumers are confused between the products, and the nutritionals for each product are clearly set out on their Nutrition Facts panels.”
*The case is Melanie Kelley et al v WWF Operating Company, dba Whitewave Services, 1:17-cv-00117. The related case is Cynthia Cardarelli Painter et al v Blue Diamond Growers, BC 647816