Ninth Circuit provides clarity for battling milk bar

Plant in Your Coffee?

If you have a favorite local coffee shop, chances are you’ve witnessed the increasing popularity of plant-based milks first-hand. The non-dairy milks available to consumers are no longer limited to soy-based products and come in a wide variety of tastes and levels of sweetening. The overall surge in plant-based milk consumption has led to the creation of a $1.6 billion industry, with 10 percent growth in the year preceding August 2018. According to the Plant-Based Foods Association, plant-based milk now represents 15 percent of the total milk market.

As with any popular food trend, marketing litigation did not lag behind alt-milk’s extraordinary growth. In fact, the fight over which products can be properly called milk at all has raged for decades.


The latest skirmish in this ongoing milk war just wrapped up in the Ninth Circuit. The appeals court dismissed a class action brought against almond milk manufacturer Blue Diamond Growers in the Central District of California.

The original case, brought by California resident Cynthia Painter in early 2017, accused Blue Diamond of misleading consumers by bragging on specific health benefits of almond milk but failing to recognize how the product underperforms dairy milk in a variety of vitamin and nutrient benchmarks.

Moreover, Painter accused Blue Diamond of improperly branding its alt-milk product as “milk,” in violation of the Food, Drug, and Cosmetic Act (FDCA) and California’s Sherman Law. Painter claimed that because Blue Diamond failed to notify consumers about the “percentage of characterizing ingredients” in its product in comparison to standard milk products, it was required to call its products “imitation milk” instead of “milk,” which it failed to do.

The Takeaway

The Central District dismissed the case in May 2017, and Painter appealed. In a pithy, five-page affirmation of the lower court decision, the Ninth Circuit agreed that Painter had failed to state a case.

Noting the FDCA’s robust pre-emptive powers, the appeals court dismissed the mislabeling claims, noting that “[t]he FDCA sets forth the bare requirement that foods imitating other foods bear a label with ‘the word imitation and, immediately thereafter, the name of the food imitated.’” Painter’s demand that the labeling include nutritional comparisons or else drop the word milk altogether was therefore not mandated by the FDCA, which superseded her state claims.

The misleading health claims were shot down by the appeals court as well. Painter had conceded that the nutritional information on Blue Diamond’s packaging was accurate; given that fact, a reasonable consumer could not be misled by it, even if it did not note that standard milk was superior by other nutritional measures.

Finally, the appeals court had a lesson for the plaintiff’s bar: Similarity does not equal mimicry. “Notwithstanding any resemblance to dairy milk,” the court wrote, “almond milk is not a ‘substitute’ for dairy milk … because almond milk does not involve literally substituting inferior ingredients for those in dairy milk.”