Citing the settlement of similar class claims in a Florida court and plausibility issues, a federal court in California has dismissed with prejudice a putative class action alleging that companies misbrand products with an evaporated cane juice (ECJ) designation and sell products not meeting the standard of identity for yogurt and milk, including soymilk and almond milk. Ang v. WhiteWave Foods Co., No. 13-1953 (U.S. Dist. Ct., N.D. Cal., decided December 10, 2013). According to the court, the California plaintiffs, who filed their complaint after the class action was filed in Florida, were members of the class, knew about that settlement and had an opportunity to, but did not, object to it. Thus, the court found their ECJ and yogurt claims barred by res judicata.
 
As for claims that consumers are confused by use of the terms “soymilk,” “almond milk,” and “coconut milk” in the names of Silk® products, an alleged violation of the standard of identify for milk, the court found that (i) the Food and Drug Administration may not have yet arrived at a consistent interpretation of its milk description as to milk substitutes; and (ii) these names accurately describe the products and “clearly convey the basic nature and content of the beverages, while clearly distinguishing them from milk that is derived from dairy cows.” Analogizing the plaintiffs’ claims to those raised in 
unsuccessful litigation alleging that “Cap’n Crunch’s Crunch Berry” cereal label misled consumers to believe the product contained real fruit, the court said consumer confusion was “highly improbable.”
 
The court further stated, “Plaintiffs essentially allege that a reasonable consumer would view the terms ‘soymilk’ and ‘almond milk,’ disregard the first words in the name, and assume that the beverages came from cows. The claim stretches the bounds of credulity. Under Plaintiffs’ logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”
 
Meanwhile, WhiteWave Foods Co. has announced that it will acquire Earthbound Farm, “one of the country’s leading organic food brands.” The $600-million cash deal will expand WhiteWave’s dairy product offerings to an extensive line of organic produce, both raw and frozen. Subject to regulatory approvals and closing conditions, the agreement is expected to be completed in the first quarter of 2014. See WhiteWave Foods Co. News Release, December 9, 2013.