In a recent unpublished ruling, the Ninth Circuit affirmed the dismissal of a putative class action lawsuit alleging that Blue Diamond Growers mislabeled its almond beverages by failing to identify products as “imitation milk.” Painter v. Blue Diamond Growers, No. 17-55901 (9th Cir. Dec. 20, 2018).

The plaintiff contended that almond milk resembles and is a (purportedly nutritionally inferior) substitute for dairy milk. The plaintiff sought a ruling that Blue Diamond Growers must cease using the term “milk” on the label of its almond milk products or include a nutritional comparison of almond milk to dairy milk. The district court determined—and the Ninth Circuit agreed—that the Federal Food, Drug, and Cosmetic Act preempts state laws that impose labeling requirements that are not identical to those under the Act. The Act only requires that foods include the word “imitation” followed by the name of the food imitated. Since almond milk is not a substitute for dairy milk, the plaintiff failed to allege that the products were mislabeled in violation of federal law.

The Ninth Circuit also affirmed dismissal of the plaintiff’s state consumer protection claims, ruling that the plaintiff did not plausibly allege that a reasonable consumer would be deceived into believing that Blue Diamond Growers’ almond milk products are nutritionally equivalent to dairy milk based upon package labels and advertising. To the contrary, the plaintiff conceded that Blue Diamond Growers accurately labeled and advertised its almond milk products.