Two lawsuits filed by the same firm, Capstone Law APC, against two of the best-selling nondairy beverage producers, Whitewave Silk and Blue Diamond's Almond Breeze, received different decisions over whether or not the milks can make health claims similar to those made by conventional cow dairy producers.
The suit against Whitewave’s Silk almondmilk, alleging that the company falsely promoted its product, was stayed by the judge in the eastern district of California last week. Chief Justice Lawrence O’Neill said in his June 6th order that the case is about as clear as any kind of milk, “Though neither party acknowledges it, plaintiff’s position – that defendant’s almondmilk is mislabeled in that it should be labeled as an ‘imitation’ – is an issue of first impression. The court has conducted extensive research and is unable to locate any authority that suggests the issue has been considered officially by the FDA or the courts.”
Justice O’Neill says the burden “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.”
The ruling falls in line with the DAIRY PRIDE Act, legislation aimed at forcing the FDA to require plant-based milk producers into removing references to milk, cheese, and yogurt from products that originate from plants instead of animals. The dairy industry insists that the use of these words may confuse customers.
But experts say it’s more likely the dairy industry’s concern over consistently declining sales that's the real threat. The nondairy milk industry has been experiencing significant category growth in recent years, taking market share away from traditional dairy year after year (it's expected to make up 13% of the market by 2022).
“The way FDA defined ‘imitation’ decades ago is clear and easy to apply in this case,” Nigel Barrella, an attorney who worked with the Good Food Institute’s recent FDA petition, told Food Navigator-USA. “The court believed the law in this area was unsettled, in part because there have been so few cases about imitations since FDA defined the term. But there’s a very good reason we don’t see more ‘imitation’ cases; under clearly established law, it almost never applies in the modern marketplace.”
From the Organic Authority Files
But despite the ruling against Whitewave, nondairy milk producers enjoyed a victory last month when another California judge, Stephen Wilson in the central district, threw out a case against Blue Diamond, the producer of Almond Breeze almond milk.
“By using the term almond milk, even the least sophisticated consumer would know instantly the type of product they are purchasing,” he wrote in his decision. “If the consumer is concerned about the nutritious qualities of the product, they can read the nutrition label.”
Other recent court cases have challenged the standard of identity for milk – whether or not nondairy milks can continue to identify as milk products in lieu of containing bovine lacteal secretions. The FDA recently relaxed its pressures on Hampton Creek, maker of Just Mayo, an eggless mayonnaise product that the FDA and competitor Unilever had said violated the agency’s more than fifty-year-old definition of mayonnaise, which included eggs. Unilever dropped its lawsuit against Hampton Creek, and even released its own version of eggless mayonnaise.
“If ‘milk’ was the only world on a container of almond milk, that could be a problem,” Michele Simon, Executive Director of the Plant Based Foods Association told Organic Authority in February. “But they’re not doing that. No company is doing that. The dairy industry wants to take it out of context.”
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